40 W. Va. 484 | W. Va. | 1895
This was an action of trespass on the case in the Circuit Court of Mercer count;/ by Theodore Yeager against the city of Bluefield to recover damages for the breaking of the plaintiff’s leg, on the allegation that it resulted from defect in the crossing over one of the streets, in which there was a verdict for three thousand five hundred dollars and a judgment. The city brings the case here.
There is an objection to the declaration, the point of the objection being that it is too general in its statement of the injury to the plaintiff’s person — the allegation being that by reason of his fall he “was greatly injured, bruised, wounded and crippled, and put in great danger and peril” — and that it should have alleged that his leg was broken. No authority is cited to sustain this point, but it seems to be relied upon with confidence. I think the declaration sufficient on this point. The plaintiff sues for a bodily injury. That is clearly alleged. That his leg was broken is only a fact evidentiary of the ultimate fact predicated; that is, that he was injured, bruised, wounded and crippled. Pleadings need not state evidence, but only ultimate facts shown by the evidential facts — the ultimate facts — else there would be endless prolixity, as ultimate facts may include many subordinate or evidential facts. Often it is imprudent to allege such facts, as it produces variance. 1 Chit. Pl. 407. See Hawker v. Railroad Co., 15 W. Va. 635. If a man’s wagon is broken by reason of a road’s defects, he can charge that it was injured, broken and rendered useless, without saying its axles and wheels were broken. I have found very little pointed law on the subject, common as the matter seems, and it is a matter not without practical importance.
Another ground of demurrer is that the dfeclaration alleges that the crossing over the street was uneven, sideling, muddy, rocky, and slippery, and there was a deep mudhole in it, and the crossing in bad order and condition, and out of repair, and no proper crossing had been made' and the street founderous and covered with mud and water; and the contention is that the plaintiff saw, or could have seen, the danger, and in crossing was 'guilty of contributory negligence. I do not concur in this point of demurrer. It was essential that the declaration charge these things to maintain the action, and so stating does not bar the plaintiff of his action. It does not state that plaintiff knew its bad condition. And, even if one knows a street is in bad condition, he need not stay- indoors, and he need not refrain
The next question of the case is whether the defendant is liable upon the facts. And that depends upon whether the crossing was defective within the meaning of the statute .(section 53, chapter 43, Code 1891) that “any person who sustains an injury by reason of a public road or bridge in a county, or by reason of a public road, bridge, street, sidewalk, or alley in an incorporated city, village or town, being out of repair may recover all damages sustained.” When we are told, as in Chapman v. Milton, 31 W. Va. 384 (7 S. E. Rep. 22) and Gibson v. City of Huntington, 38 W. Va. 177 (18 S. E. Rep. 447) that the liability of cities and towns for injuries by reason of streets being out of repair is absolute, we must not be misled. It is meant that, when the basis or cause of the liability exists, that liability is absolute in the sense that no want of notice or other excuse for the defect in the street will exonerate the town. But this idea of absoluteness does not refer at all to the cause of lia-fbility, but only to the liabilty when it exists. It does not mean that the state of the street must be perfect. Before imposing this absolute liability, we must first determine whether the street is out of repair in the sense of the statute. When is it so out of repair? Is it to be absolutely free from stones, mud, or inequalities, like the floor of your •own home, or like the paths, walks and drives in the grounds •of a royal palace or beautiful park? Where shall we find this perfection? Is it to furnish absolute immunity from ■accident and injury? What city or town in the country might not be bankrupted if this is to be the construction of the statute? There is no city, however well ordered, complying with this standard. Hone could do so with the means iit its command, short of confiscatory taxation. It is hard,
■ This Court has held against the doctrine of the highest state of repair by.announcing the law to be that: “A municipal corporation is not an insurer against accidents upon streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets — which include sidewalks and bridges thereon — are in a reasonably safe condition for ordinary travel in the ordinary mode,,by night as well as by day; and whether they are so or not is a practical question to be determined in each case by the particular circumstances.” Wilson v. City of Wheeling, 19 W. Va. 323. Let it be understood once for all, under the principle long ago announced by this Court, and ample authority elsewhere, that the law does not require a municipal corporation to respond in damage for every accident that may be received upon a public street. The law does not require it to have its streets or sidewalks so constructed as to secure absolute immunity from danger in using them; nor is it bound to employ the utmost care and exertion to that end. 2 Dill. Mun. Corp, § 1006. Were it otherwise, what would be the burden cast upon taxpayers in this state, where heavy rains and snows constantly fall, freezes and thaws frequently copie, which, with other causes, work great and constant injury to streets? Now let us look at the present case in the light of these principles.
The claim of the plaintiff is that on a December night he, in company with another, was walking along Princeton avenue, and crossing BJand street at its junction with the avenue, he stepped upon a stone, to keep out of the mud, and, it slipping from under him, he fell and broke his leg. There were two mudholes, as plaintiff’s evidence tends to show, in the crossing — one very small, one of considerable
The defense introduced thirteen witnesses whose evidence bears on the condition of the crossing, as against six for the plaintiff, and, so far as we can see from paper and positions of trust and business held by them in the community, their evidence is credible. We do not see that any question of veracity was made against them. The evidence shows that a couple of months before this accident there was a large mudhole in Bland street at its junction with Princeton avenue, and that limestone rock was hauled and thrown into it, and a crossing made clear across it, at least
In applying this statute we can consider the location of the road, the nature and circumstances of the particular section, the difficulty of keeping it in high repair without unreasonable expense, the season of the year, and the nature and amount of travel. Ang. High. § 259. The mere slipperiness of a sidewalk occasioned by ice or snow — the same, certainly, as to mud — “not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby. Where there is snow upon a sidewalk, there is danger from slipping and falling, even on the best constructed sidewalks.” 2 Dill. Mun. Corp. § 1006. This mud’s presence was not a structural defect, not an obstruction.
Being of opinion that the verdict is contrary to the evidence, we reverse the judgment, set aside the verdict, award a new trial, and remand. . ■