Costello v. City of Wheeling

117 S.E.2d 513, 145 W. Va. 455, 1960 W. Va. LEXIS 45

Opinions

Browning, President:

In this action of trespass on the case, plaintiff, Mad-alyn Costello, seeks to recover for personal injuries sustained when she fell on a sidewalk abutting Market Street in the City of Wheeling, West Yirgina. The defendants are the City of Wheeling, The First National Bank & Trust Company, as Trustee for the beneficial owners of the McLain Building in front of which the fall occurred, and Simon Penn and Lillian Penn, doing business as Penn Jewelers, the lessee of a ground floor storeroom of the McLain Building, in front of whose shop the fall occurred. The concrete sidewalk at the point of the accident was approximately 12' in width and runs in a general north-south direction, ascending to the south, the rate of ascent not being shown by the record. In 1948, Penn Jewelers, hereinafter referred to as Penn, in the course of the construction of a new store front, had caused a portion of this sidewalk to be paved with a material commonly known as terrazzo. The terrazzo surface extends onto the sidewalk, and even with the concrete portion thereof, a distance of approximately three and one-third feet near the northern property line of the building and narrows down to a distance of one and one-half feet near the southern property line. The slope of the terrazzo and concrete from the building to the curb varies from %ths inch per foot on the north to %ths inch per foot on the south. The terrazzo and slope constitute violations of a city ordinance prescribing the materials and maximum degree of slope for construction of sidewalks within the City of "Wheeling. Two witnesses testified as to the slipperiness of the terrazzo surface in comparison with the remainder of the sidewalk. Sidney Smith, an engineer and the person who made the above mentioned measurements, testified that he had performed tests on the terrazzo and concrete, and that the results showed the terrazzo to be more slippery, both dry and wet, than the adjoining concrete. John Pascoli, the subcontractor who had laid the terrazzo, testified that the composition used in doing the work was two parts marble chips to one part cement. The part containing the marble chips also contained 20% alundum, an abrasive resembling carborundum, the addition of which is to prevent slipping. Pascoli also testified that when finished, the terrazzo and the concrete generated almost the same amount of frictional resistance and that the terrazzo would become more resistant with age and wear; that, additional precautions, such as protecting the terrazzo with an awning or by sprinkling with sand in wet weather, would depend upon the grade of the sidewalk; and that, when terrazzo was used in the construction of steps, the alun-dum or abrasive content was increased to 40%. Charles Bell, Jr., testified that he was an employee of Penn; that sand was kept for use on the terrazzo in wet weather; and that he had applied sand to the terrazzo a short time previous to plaintiff’s fall. He also testified that he had assisted plaintiff following her fall, that she was lying on the sidewalk near the northern property line, her feet and part of her body being partially on the terrazzo with the rest of her body on the concrete portion of the sidewalk, and that, while he had not taken particular note, it appeared at that time that most of the sand had been washed away. Plaintiff testified that she had been shopping; that it was raining very hard; and, as she was proceeding south on Market Street “* * * on the walk in front of the Penn Jewelers on the terrazzo as you call it”, her feet slipped out from under her and she fell. On cross-examination, she was asked these questions and gave these answers: Q: “ * * * Now, how come you remember it was on the terrazzo part you say you fell?” A: “Because it was very slippery on the spot where I fell and it was close to the doorway.” Q: “It was very slippery on the part where you fell and that is the reason you say it must have been on the terrazzo, is that correct?” A: “Yes, sir.” Q: “You can’t say as a definite matter where you did fall?” A: “On the terrazzo, yes, sir.” As a result of her fall, plaintiff sustained injuries which later required an operation for removal of the coccyx.

At the conclusion of the testimony in behalf of the plaintiff, the court sustained a motion in behalf of the defendants, and directed a verdict against the plaintiff, and in favor of all of the defendants. A motion to set aside such verdict was overruled and judgment was entered thereon, all of which actions are assigned as error in this Court.

Under the provisions of Code, 17-10-17, a municipal corporation has an absolute liability for an injury resulting from its streets, sidewalks and alleys being out of repair, if required by its charter to keep them in repair, even though such municipal corporation had no notice of such fact at the time of the injury resulting from such condition. Therefore, assuming such provision is in the charter of the City of Wheeling, it is only necessary for this Court to determine upon this writ whether the trial court, from the evidence adduced by the plaintiff, committed error in finding as a matter of law that the sidewalk in question was not out of repair within the meaning of the statute. There have been several such cases decided by this Court and they are collected and commented upon in the opinion of the recent case of Burcham v. City of Mullens, etc., 139 W. Va. 399, 83 S. E. 2d 505. This Court has consistently held that for a public sidewalk to be out of repair within the meaning of that section, it must be in a condition which renders it dangerous to persons using it with ordinary care by day or by night. But every defect in a city street or sidewalk which causes an injury is not actionable under this statute. Waggner v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352; Yeager v. City of Bluefield, 40 W. Va. 484, 21 S. E. 752. As was stated in the 4th point of the Syllabus of the Yeager case, the question is a practical one to be determined in each case by its particular circumstances: “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 are in a reasonably safe condition for travel in the ordinary modes, with ordinary care, by day or night; and whether so or not is a practical question to be determined in each case by its particular circumstances.” Such a rule is of little comfort to the bench and bar, but the words used in the statute, “out of repair”, are such that no more specific principle can be laid down. Cases in which a street, sidewalk or alley has been held to be “out of repair”, and the condition thereof, are: Burcham v. City of Mullens, 139 W. Va. 399, 83 S. E. 2d 505 (board sidewalk which sagged or tilted when stepped upon); Burdick v. City of Huntington, 133 W. Va. 724, 57 S. E. 2d 885 (hole in sidewalk, five to eight inches long, two inches wide, and one and one-half to three inches deep); Rich v. Rosenshine, 131 W. Va. 30, 45 S. E. 2d 499 (snow and ice piled in ridges and depressions on sidewalk); Taylor v. City of Huntington, 126 W. Va. 732, 30 S. E. 2d 14 (driveway elevated three inches above surrounding terrain); Williams v. Main Island Creek Coal Co., 83 W. Va. 464, 98 S. E. 511 (projection of scaffold three feet into roadway). No attempt has been made to cite all of the cases dealing with this question nor to relate all of the conditions, defects or obstructions which have been held to come within, or without, the meaning of the words “out of repair”. In the instant case, the evidence most favorable to the plaintiff shows only that the terrazzo was more slippery than the adjacent concrete. It does not necessarily result therefrom that it was dangerous to walk upon, “with ordinary care by day or night.” This Court finds no error in the action of the trial court in directing the jury to return a verdict for the City of Wheeling.

Upon this finding, that the sidewalk was not “out of repair”, we affirm also the action of the trial court in directing the jury to return a verdict for the defendant, the First National Bank and Trust Company, a corporation, Trustee, etc., the owner of the building, inasmuch as there was therefore no violation of any duty imposed by ordinance upon this defendant, or any evidence as to any other act of negligence.

The trial court twice heard arguments and considered briefs by counsel upon the question of the liability of the tenant, Penn, and wrote two informative memoranda opinions on the question. The cases from other jurisdictions involving actions for damages by persons injured from falls on terrazzo surfaces are in conflict. However, to place so many in one category and so many in another would not be quite accurate, for the facts must be carefully looked to in each ease in ascertaining the reason for the decision of the Court. Without further comment some of those cases are here cited: Charles v. Commonwealth Motors, 195 Va. 576, 79 S. E. 2d 594; DeWeese v. J. C. Penny Co. (Utah), 297 P. 2d 898; Erickson v. Walgreen Drug Co. (Utah), 232 P. 2d 210, 31 A.L.R. 2d 177; Grant Co. v. Karren, 190 F. 2d 710; Vogrin v. Forum Cafeterias (Mo.), 308 S. W. 2d 617; Cardall v. Shartenberg’s, Inc. (R. I.), 31 A. 2d 12; Brody v. Albert Lifson & Sons (N. J.), 111 A. 2d 504; Fletcher v. Furniture Co. (Mo.), 222 S. W. 2d 789; Schmoll v. National Shirt Shops (Mo.), 193 S. W. 2d 605; Parks v. Montgomery Ward & Co., 198 F. 2d 772; Fanelty v. Rogers Jewelers, Inc., 230 N. C. 694, 55 S. E. 2d 493; Mullen v. Sensenbrenner Mercantile Co. (Mo.), 260 S. W. 982, 33 A.L.R. 176; Guercio v. New York Lerner Co., Inc., 63 N. Y. S. 2d 664, 65 A.L.R. 2d 428, et seq.

In Spears v. Goldberg, 122 W. Va. 514, 11 S. E. 2d 532, the plaintiff instituted a personal injury action for injuries received in a fall on a terrazzo incline at or near the entrance to the defendant’s store. In her declaration, the plaintiff did not allege negligence, but alleged that: “the terrazzo entrance ways were ‘highly polished, and extremely slippery when wet,’ and in rainy or damp weather constituted a nuisance.” The trial court directed a verdict for the defendant, but the judgment was reversed by this Court upon the ground that the plaintiff’s evidence was sufficient to present an issue of fact to the jury for its determination. In the dissenting opinion by Judge Kenna, he said: “* * * It may be that here a recovery on the basis of negligence on the part of the tenant in not exercising due care to provide a reasonably safe entrance in wet weather for invitees who were its prospective customers would be justified if pleaded. * * In the majority opinion, the testimony of a civil engineer to the effect that terrazzo, when properly constructed with sufficient abrasive, is not slippery when wet was noted, and the Court observed that from this testimony “and from other evidence” the jury would have been justified in finding that the terrazzo when wet was slippery because of an inherent defect in construction.

In this jurisdiction, violation of a statute or ordinance is prima facie evidence of negligence. Barniak v. Grossman, 141 W. Va. 760, 93 S. E. 2d 49; Morris v. City of Wheeling, 140 W. Va. 78, 82 S. E. 2d 536; Moore v. Skyline Cab, Inc., 134 W. Va. 121, 59 S. E. 2d 437; Scott v. Hoosier Engineering Co., 117 W. Va. 395, 185 S. E. 553. Of course, it is true that the violation of such an ordinance or statute must be the proximate cause of an injury. But primary negligence, contributory negligence and proximate cause are questions for jury determination unless there is no evidence upon which to found a verdict for a plaintiff, or conflicting evidence clearly preponderates in favor of the defendant. There was evidence in this case from which the jury could have found that Penn violated two city ordinances in laying the terrazzo onto the concrete sidewalk in front of its entrance. There was evidence from which the jury could have found that terrazzo is more slippery than concrete especially when wet. The sanding of the terrazzo by an employee of Penn is evidence of its knowledge of that fact. It was for the jury to decide whether Penn was negligent and whether its negligence was the proximate cause of plaintiff’s injury. The 1st point of the Syllabus of Fielder, Admx. v. Service Cab Company, 122 W. Va. 522, 11 S. E. 2d 115, states the rule well and has been quoted often: “Before directing a verdict in a defendant’s favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.”

For the reasons herein stated, the judgment of the Circuit Court of Ohio County upon the directed jury verdict for the defendants, City of "Wheeling and the First National Bank and Trust Company, a corporation, Trustee, etc., is affirmed; the judgment upon the jury verdict for the defendant, Penn is reversed; and the case is remanded for a new trial.

Affirmed in part; reversed in part; and remanded.