66 W. Va. 393 | W. Va. | 1909
Lead Opinion
About nine o’clock on the night of June 12th, 1907, George W. Stanton was going along Murdock Avenue, one of the public streets in the City of Parkersburg, and was tripped by a wire netting stretched across the sidewalk to protect a piece of recently made cement sidewalk in front of the property of J. W. Jones, and was thrown down and hurt. He brought, an action against the city for negligently causing the injury, and on the 12th of ¡March, 1908, recovered a verdict and judgment for $550.00. To this judgment defendant obtained a writ of error and supersedeas from this Court.
A number of errors are assigned as cause for a reversal. The first is the overruling of the demurrer to plaintiff’s amended declaration. We see no error in this; the amended declaration states a good cause of action.
The second, third and fourth assignments relate to the action of the court in overruling defendant’s motion to exclude, plaintiff’s evidence and direct a verdict for defendant, and overruling its .motion to set aside the verdict and grant a new trial. Bill of exceptions No. 3 makes the evidence a part of the record; and, without expressing any opinion in regard to the weight of the. evidence, we may very properly say that these bills of
Section 53, chapter 43, Code, makes it the duty of the city to keep its streets and sidewalks in repair and free from' dangerous obstructions, and if it fails to do so, and injury results, it is liable. A city may permit temporary obstructions of its streets and sidewalks, in cases of necessity, but it is bound to take proper precaution to warn the public against the danger occasioned by the obstruction.
Edwin Howe, an employe of Mr. Jenkins, testified that on the night plaintiff was hurt, and just before dusk, between seven and eight o’clock, he had put up two lights, one at either end of the netting. This is the only testimony on behalf of defendant to show that any signal lights were placed on the wire on the night of plaintiff’s injury. The plaintiff and a number of other witnesses introduced by him testified that no lights were there when he was injured.
F. M. Barringer says that he went down town about eight o’clock on the night of the accident and went back about nine o’clock; that he passed by the place, and that there were no lights. Samuel McConaughey states that he was coming up the street about fifteen feet behind Stanton and saw him fall oyer the wire; that in going to assist Stanton he came near
We admit the force of counsel’s argument, that it is hard to understand how a man of ordinary height could be 'tripped on such a netting and, in falling, fall over it; provided it was upright and was drawn as taut at the top as at the bottom. But its condition in this particular does not appear, and if the stakes were not kept firm and upright, the top wire would become slackened and the netting wlould lean over; if such was its condition at the time plaintiff was hurt, his feet very probably struck the bottom of the netting before his body touched the top ; and, if walking rapidly, as plaintiff says he was, he would be very likely to fall; and, in falling, would fall over the wire. The fact that he did fall over it is not denied by any witness. Witness McConaughey saw him over the netting and helped him up. J. W. Jones, a witness for the defendant, says that he learned of the accident about noon on the following day, and found a spot of blood on the sidewalk about eighteen inches from the netting on the inside of it, and that he took the hose and washed it off. Plaintiff testified that in the fall, he knocked out six teeth, lacerated his face and ear; that he bled a great deal from his nose and ear, and that the hurt he received has permanently impaired his hearing in one ear.
Bills of exception's Nos. 6 and '7, relate to the giving of plaintiff’s instructions Nos. 7 and 6. We do not think the court erred in giving either of them.
Instruction No. 6 is as follows: “The Court instructs the jury that while the defendant had the right to temporarily obstruct the passage of travel over the sidewalk where the plain-
Instruction No. 7 relates to the measure of damages,"and
Bill of exceptions No. 5 relates to the court’s refusing to give its instruction No. 2, which is as follows: ‘ ‘'The Court instructs the jury that if they believe from' the evidence in this case that the defendant in the construction of the improvement of the sidewalk at the place named in the declaration had, at the time of the injury complained of, a lantern or beacon light at said place, that the plaintiff was not exercising ordinary care when the said injury occurred and they must find for the defendant.” This instruction states the converse of No. C, given on behalf of plaintiff; and a majority of the Court are of the opinion that it was prejudical error not to give it and, reverse the judgment for this error. But I can not concur in this view. I think the court was justified in refusing'the instruction for two reasons: (1) because plaintiff’s instruction No. 6 covers the entire question of defendant’s nejgligence and plaintiff’s contributory negligence, and in effect, tells the jury that before plaintiff can recover they must believe the city was negligent and that plaintiff 'was not, although according to our decisions construing section 53, chapter 43, Code, plaintiff was not bound to prove the city’s negligence;- defendant’s No. 2 states nothing more than the converse of this proposition; it is a necessary sequence flowing from plaintiff’s No. 6; if the jury did not believe the city was negligent and the plaintiff was careful to avoid injury there was only one thing for them to do; i. e., find for the defendant. I think it would be a reflection on the intelligence of juries to hold that it was necessary to instruct them on a question so self evident as this. If they could not find for the plaintiff, as a matter of course, they had to find 'fdr'the defendant; and this, in effect, is all that defendant’s No. 2 would tell them. It means no more than if the court had said: “if you can not find for the plaintiff you must find
The judgment of the lower court will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.
Dissenting Opinion
(dissenting) :
The judgment should be affirmed. The refusal to give instruction No. 2 was not error. There is no conflict of testimony upon which it could be based. No witness maintains that the city had ¿ warning at the place of danger at the time the injury happened. It is established without contradiction
I do not think the giving of the plaintiff's instruction No. 6 excused or justified the refusal of defendant’s instruction No. 2. Though the subject matter of the latter is adverted to in the former, and the defendant asked a mere statement of the converse of the proposition, hypothetically stated for the plaintiff, and the jury is presumed to be composed of reasonable and intelligent men, it is elementary law that a party to a trial before a jury is entitled to have his theory of the case hypothetically submitted to the jury by means of an • instruction, if it is property framed, based on evidence and not covered by others given. I-Iis fate is not to be left to the presumed reason and intelligence of the jury, uncontrolled by direction or guidance of the court, in respect to matters of law, unless he signifies his willingness to let the jury take it in that way by his failure to ask for such direction and guidance. It is only proper in the absence of a request for an instruction. Notwithstanding the intelligence of the juryq law everywhere says a party to a trial is always entitled to have that intelligence directed to the issue of fact, committed to the jury by the law, by an instruction, if he demands it. If he does not, he is presumed to have waived his right to it. All juries are ndt of equal intelligence and conditions in all trials are not the same. There are degrees oE intelligence and differences in condition. A party to a trial has always and everywhere been permitted to determine for himself, whether, owing to abnormal conditions pertaining to the character and composition of the jury or the conditions surrounding it, he will let his case go to it with or without, the influence and control of proper instructions fromi* the court. However intelligent the jurors may be, and whatever the conditions surrounding them, they are not supposed to know any law, though they may, and a party may treat
Nor can I agree'to the view that there is no evidence of the existence of lights at the place of the injury at the time thereof. A witness stated that he had placed them there just a short time before it happened. They had no power of themselves to depart. The presumption is -that they remained there, if he placed them, as he says he did, and, whether he did or not, depends upon the jury’s belief as to the truthfulness of his statement. That presumption is not destroyed by the testimony of other witnesses who say the lights were not there at the time of the injury. It may be overcome by this testimony, but it is not rendered non-existent. It remains in, the case and operative as evidence, and, therefore, justifies the giving of the instruction, embodying the defendant’s theory of the case. Whether it is sufficient to sustain a finding for the defendant, does not arise on the application for an instruction. If there is any evidence appreciably tending to sustain the hypothesis of an instruction, it should be given. The sufficiency of the evidence to sustain a verdict, must be raised by a motion to exclude, a demurrer to evidence or a motion to- set aside the verdict.