79 W. Va. 1 | W. Va. | 1916
Lead Opinion
William MeSherry was driving along the Smithfield and Shepherdstown Turnpike, one of the public macadam roads of Jefferson county, about ten o’clock at night, with his wife and cousin, in'a one horse buggy, when his horse suddenly became frightened, from some unknown cause, and swerved onto a pile of crushed stone deposited by the roadside and overturned the buggy, throwing the three occupants out and injuring Mr. MeSherry. He sued the county court of Jefferson county and recovered a. judgment for $550.00 damages, and it brings the case here on writ of error.
A motion to dismiss the writ of error is made on the ground that, after judgment in the court below and before application was made for the writ of error, the plaintiff died, and there was no revival of the judgment. The practice both in Virginia and in this State has been to proceed with the case on writ of error or appeal, as the case may be, as if the judgment creditor were still in being, and to issue process against his personal representative, when he is designated in the petition, which was done in this case. Phares, Ex’r., v. Saunders, 18 W. Va. 336; Butcher v. Kunst, 65 W. Va. 384; and City of Charlottesville v. Stratton’s Adm’r., 102 Va. 95. The motion to dismiss is therefore overruled.
It is proven that the horse was well broken to the buggy, was reasonably gentle; that plaintiff was exercising ordinary care in driving when the accident occurred; that the night was dark, but light enough to see the road just in front of the
In view of the uncontradieted evidence clearly proving the size and shape of the pile of macadam, its location relative to the used portion of the highway, the general character of the ground and the width of the used portion of the highway at •the place of accident, the question presented is one of law rather than fact. The statute, Sec. 56a (49), Ch. 43, Barnes’ Code, makes a county court liable to anyone who sustains an injury in person or property “by reason of a public road * * * being out of repair.” This statute has been held to impose an absolute liability, that is, a liability not necessarily depending on the negligence of a public official whose duty it is to keep the road in repair, but depending on the fact of its being out of repair. But the words, ‘ ‘ out of repair, ’ ’ must be given a reasonable interpretation. They have been held to include obstructions in the road, failure to maintain guard rails along a walled approach to a bridge, as well as defects in the surface of the roadbed. Reasonably construed, they mean the same thing as, “not being in a reasonably safe condition for travel in the ordinary modes, by day or by night.” The legislature is presumed to have had knowledge of the
In the present case the traveled roadway was fifteen feet wide and thS surface smooth, and the ground on either side
There being no evidence to support the verdict, the court should have sustained defendant’s demurrer to the evidence and entered judgment for it, and such will be the order of this court.
Concurrence Opinion
(concurring):
The opinion concurred in by the majority of the court in this case does not affect in any manner the oft repeated decisions of this court that section 59a, chapter 43 of the Code, imposes an absolute liability on counties and cities and towns for injuries sustained on account of their roads, streets and sidewalks being “out of repair”, and that the words “out of repair” includes obstructions to the highway as well as defects therein.
I am not willing to say that a public road is necessarily “out of repair” because-every part of the “right of way” is not in condition to be used by travelers, when enough of the right of way is in reasonably good condition, affording the traveler a convenient and safe way. It is the duty of the authorities having control of public roads, streets and sidewalks, to provide for public use, highways reasonably safe, not
Then, if it is not the duty of counties in constructing roads, to free the margins of all embankments, rocks, stumps, and ravines, to protect the county from liability for injuries caused by such obstructions, can it be said that because such or like obstructions were permitted on the roadside at points where they did not exist when the road was constructed, create a liability? What difference to the traveler does it make whether the stone on the margin of the road which injures him, was left there when the road was constructed or placed
Reversed and rendered.
Dissenting Opinion
(dissenting):
I cannot concur. In the first place, the evidence is conflicting as to the height of the stone pile, and as to its exact location with reference to the traveled part of the road. All of the plaintiff’s witnesses place its height, prior to the accident, at from three to four feet at' the highest point. The height, two and one half feet, mentioned in the opinion, is the measurement given by the road surveyor, a witness for the defendant, made after the accident. The witnesses for the plaintiff say that the stone pile was pulled down by the lumbering of the horse over it and dragging it down with the buggy, which would be ,the natural result, and several of the witnesses for the plaintiff say that, as the lower court found, at least the edge of the stone pile so infringed upon the beaten road way that wheels of vehicles on the side next to it ran over the rock and ground them down to some extent; and the road surveyor, a witness for the defendant, says, referring to a time before the accident, that four or five times he told Elliott, the man who owned the rock pile, to get it out of the road. The evidence shows that the rocks did not belong to the county, but to Elliott, who had placed them there with the view of selling them to the county for improving the road; and the evidence shows that there was ample space to have deposited this stone away from the traveled way, so as to have been less dangerous to the traveling public; also that this rock pile had been maintained in this position at the time of the accident for about two years, notwithstanding the frequent warnings of the road surveyor to the owner to remove it, and I think it was a question for the jury, and not one of law for the court, whether the county was negligent with respect to maintaining this rock pile for so long a time as to be a menace to the public, and which resulted so seriously to the plaintiff in this case.
I think we ¿re committed by a long line of decisions construing our statute to the comprehensive proposition that counties and municipalities are liable to persons injured there
This law was applied in Biggs v. Huntington, 32 W. Va. 55, where a well hole had been allowed to exist, not in the traveled part of the unpaved road or street, nor on the sidewalk, but between the two, but in such proximity thereto as to make it dangerous to persons using the street or walk. In that case Judge Green, combating a contrary view expressed in some decisions cited, says: “ There are, however, numerous cases where a traveler, though he meets with an accident off from the public streets, has nevertheless recovered of the town the damages he has sustained, when sustained very close to the edge of the public highway.” He cites cases frequently cited and approved by this court, namely, Niblelt v. Nashville, 12 Heisk. 684; Turnpike Co. v. Crockett, 2 Sneed 271; Memphis v. Lasser, 9 Humph. 757; Burnham v. Boston, 10 Allen 290; Hill v. Boston, 122 Mass. 349. The proposition I am contending for is also affirmed in’ Rohrboygh v. County Court, 39 W. Va. 472, where the injuries complained of resulted from a horse becoming suddenly frightened, as in this case, and shying away from a pile of rock in the roadway, not as in this case frightened by some other object and lumbering upon the stone pile, but instantly backing over an embankment forming an approach to a bridge unguarded by railing. The court in that case, differentiating it from Smith v. County Court, 33 W. Va. 713, where the result of the accident was said to be due proximately to the vicious character of the horse, rather than to the obstruction in the road, quotes approvingly the doctrine of Vermont and Massachusetts cases, that where the injury is the combined result of the accident and a defect in the highway, and it could not have happened but for the de-
The learned judge of the trial court, relying upon the decisions of this court, and I think properly interpreting them, •overruled defendant’s demurrer to the evidence, and entered judgment on the verdict for the plaintiff.
For the proposition, that a county must not allow obstructions to exist in the traveled parts of a road, or so near thereto as to make the traveled part thereof unsafe, considering the character of the road, the country traversed, and the weather conditions, the following authorities are cited: 15 Am. & Eng. Ency. Law, (2nd ed.) 452 and 453; Town of Fowler v. Linguist, 138 Ind. 566, 37 N. E. 133; Moran v. Inhabitants of Palmer, 162 Mass. 196, 38 N. E. 442; Tilton v. Wenham, 172 Mass. 407, 52 N. E. 514; Morse v. Town of Richmond, 41 Vt. 435, 98 Am. Dec. 600; Drew v. Town of Sutton, 55 Vt.. 586, 45 Am. Rep. 644; Houfe v. Town of Fulton, 29 Wis. 296, 9 Am. Rep. 568; Slivitski v. Town of Wien, 93 Wis. 460, 67 N. W. 730; Bolts v. Town of Sullivan, 101 Wis. 608, 77 N. W. 870; Wakeham v. Township of St. Clair, 91 Mich. 15; Davis v. Inhabitants of Charlton, 140 Mass. 422, 5 N. E. 473; Harris v. Inhabitants of Great Barrington, 169 Mass. 271, 47 N. E. 881; Scannal v. City of Cambridge, 163 Mass. 91, 39 N. E. 790; Tisdale v. Inhabitants of Bridgewater, 167 Mass. 248, 45 N. E. 730.
The plaintiff is shown to have sustained serious, painful,