Griffin v. Town of Williamstown , 6 W. Va. 312 ( 1873 )

Moore, Judge :

The amended declaration barely escapes the effect of the demurrer, even under the liberal provision of the Statute. The 29th see. Chap. 125, Code, declares; “On a demurrer, (unless it be to a plea in abatement,) the Court shall not regard any defect or imperfection in the declaration or pleadings, whether it has heretofore been deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment according to law and the very right of the cause cannot be given.”

The action is founded on sec. 55, Chap. 43, Code : “Any person who sustains an injury to his property or person by reason of a public road or bridge being out of repair may recover all damages sustained by him by reason of such injury. * * * Provided, that if such road or bridge be in any incorporated city, town- or village and under the jurisdiction.of the corporate authorities thereof, then such recovery may be had against such corporation.”

It is argued by the Counsel for the Appellant, “that to predicate this action, the injury must have been caused ‘by reason of a public road or bridge being out of repair and such road or bridge, must be under the jurisdiction of the corporate authorities of the town.” Accept--ing this key given by the Appellant, to open the door of the way leading to a solution of the question, as to what should be a sufficient allegation of the matter of complaint to lead to a “judgment according to law and the very right of the cause,” and which criterion, I think, is based on law, I am lead to believe this declaration is sufficient. She alleges, after averring the incorporation of the town, that in said corporation “there is a certain street, called-street, which said street is and continually hath been a public highway for all the citizens of the State to go, pass over, and ride in and by and through the said street at their will and pleasurecer-tainly that is a sufficient allegation of “a public road” in the corporate limits. She further avers, that the “said town of Williamstown, not ignorant of the premises, on the 1st day of August A. D. 1869, * * * did not keep in repair said street and highway, and the bridges, but on the contrary did-unlawfully, injuriously, and negligently suffer the said street and highway, and the bridges on the same, to be and remain in such bad repair and dangerous condition, and did Hot take care to keep the bridges on said street and highway safe, sound and of good material for the safe passage' over the same, &c.” That, I apprehend, is a sufficient averment that" it was “out of repair,” &c.; and it is equally plain, from other averments, that she sustained injury in consequence thereof. Those averments are sufficiently specific, and oí that certainty required in pleading leading to an issue, upon which judgment can be given “according to law and the very right of the cause.”

The demurrer was properly overruled. Upon the merits of the case : If the probata sustain the allegata, then the Plaintiff ought to recover by the right given by . the statute, Code Chap. 43 sec. 55, from the corporation-damages for the injury; and upon the principles laid down upon the many aúthorities cited by Judge Hogeboom in Wendell vs. Mayor &c. of Troy, 39 Barbour 335, affirmed in 4 Keyes, 261; that “Where muni-cical corporations or individuals are charged, as in the case of streets or highways, with the duty of keeping them in repair, and exercising a general oversight in regard to their condition and safety, they or the body they represent are liable for all injuries happening by reason of tlieir negligence/’ and that; “They are bound to keep the streets and highways in a proper state of repair and free from all obstructions or defects • in the roadbed which” (reasonable,) “vigilance and care can detect and remove ; and this whether or not the work or repairs are being done by a contractor under them, the negligence-of whose servants causes the injury complaine'd of.” The 6th sec. of Chap. 15, Acts, Extra Session, 1868, makes it the duty of this town to cause all the streets and public roads lying within the same to be kept in good order and condition.

In this case, although the court might not have given such a verdict upon the evidence, had it been acting as a jury, yet, “as by the demurrer to the evidence, the de-murrant has admitted all that could be reasonably inferred by a jury from the evidence given by the other party and waived all the evidence on its part which contradicts that offered by the other party, or tends to establish a case inconsistent with the case proved by the evidence of the other party, the evidence of Plaintiff in this case, taken by itself, and as unimpeached and unaffected by contradictory evidence,” justifies the verdict. (Tutt vs. Slaughter’s Adm’s 5 Gratt 364.)

I am of opinion that the judgment should be affirmed with costs and damages.

Hayjiond, President, and Paull and Hoffman Judges, concur in the foregoing opinion.