Riley, President:
This is an action by Maude V. Smith to recover damages for personal injuries alleged to have been sustained by reason of a sidewalk being out of repair. The defendant, City of Bluefield, prosecutes error to a judgment, based on a jury verdict against it in the amount of $2,716.75.
A preliminary question was raised on special plea and demurrer to the amended declaration regarding the State Road Commission’s responsibility, if any, for the upkeep of the sidewalk. It is contended on behalf of the city that the action of the road commissioner, designating Federal Street as a part of the primary road system, obligated the commission to maintain not only the vehicular part of Federal Street, but the contiguous sidewalks as well. In this regard it should be noted that the statute (Chapter 40, Article X, Section 17, Acts, West Virginia Legislature, First Extraordinary Session, 1933, formerly Code, 17-9-33) gives a right of action to “any person who sustains an injury to his person or property by reason of * * * any street or sidewalk or alley in any incorporated city, town or village, being out of repair.” Whereas, Chapter 40, Article IV, Section 26, Acts, West Virginia Legislature (1st Ex. Sess.), 1933, under which the Road Commissioner designated Federal Street as part of the primary road system of the State, speaks only of “streets” and “bridges”. “Streets” as used in this statute, in our opinion, relates to that portion of the designated municipal thoroughfare which is devoted to vehicular traffic and not to “sidewalks”. The obvious purpose of the right to designate was to insure continuous and satisfactory vehicular traffic through municipalities. If it had been the intention
to
relieve the municipalities of the responsibility of maintaining sidewalks along designated streets, we believe the statute would have so provided, by specifically mentioning “sidewalks” along with “streets”. Such being the case, the City of Bluefield is subject to action for damages for injuries sustained by reason of its sidewalks being out of repair.
The portion of the sidewalk claimed to be out of repair is located on the west side of Federal Street and directly north of the Scott Street intersection. A restaurant, known as Leslie’s Car Diner, stands on the northwest corner of the intersection, facing Federal Street. The sidewalk in front of Leslie’s is divided into two strips by a seam or division, running parallel with the street, the
width of the outside strip being seven and one-half feet (except at the corner where it is rounded to some extent) and the inside strip two feet, respectively. This division continues across the sidewalk flanking Leslie’s on the south to the curb line of Scott Street. At a point along this seam, or division, between the two strips and to the south of the building line, the inside edge of the seven and a half-foot cement slab was almost one and a quarter inches above the adjoining edge of the two-foot strip. This uneveness in elevation of the edges tapered off in both directions to a common level, its whole length totalling approximately three feet. The witnesses in testifying concerning this uneveness in the edges of the two strips of cement speak of a “depression” along the edge of the two-foot strip, thus indicating a “sag” in the eastern side of the latter strip, rather than a “hump” in the wide strip.
The alleged accident occurred April 10, 1946. Plaintiff, who lived at Welch, had come to Bluefield on business. A few minutes prior to the accident she had alighted at the bus terminal just north of Leslie’s Car Diner, and was on her way to the OPA offices. To reach her destination from the bus terminal, the usual course for a pedestrian to take was to travel south on the sidewalk heretofore described. Plaintiff says that as she proceeded on her way a part of her attention was given to the crossing immediately ahead, and that she did not notice any defect in the sidewalk until the heel of her shoe on her right foot turned, due to the uneveness of the edges of the two strips of cement, causing her to fall.
The city contends, among other things, (1) that the uneveness in the sidewalk, as heretofore described, was not such a defect as would render the sidewalk “out of repair” within the meaning of the statute; (2) that the plaintiff, by her own testimony, fixed the location of the accident at a point along the seam about one foot north of the greatest difference in elevation between the edges of the cement slabs, that is, at a point where there was only three-eighths of an inch difference; and (3) that plaintiff was guilty of contributory negligence.
The defendant cites
Yeager v. City of Bluefield,
40 W. Va. 484, 21 S.E. 752, to the effect 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 are in a reasonably safe condition for travel in the ordinary modes with ordinary care, by day or night.” Also cited are
City of Roanoke v. Sutherland,
150 Va. 749, 167 S. E. 243, and
Childrens v. City of Richmond,
181 Va. 267, 24 S. E. 2d 419, in both of which the question whether the street was so defective as to constitute a liability on the city was disposed of as a matter of law. It is contended on the part of the City of Bluefield in the instant case that the facts are so well established and unequivocal that the trial court should have proceeded in like manner upon considering the demurrer to the amended declaration. In this regard it should lie noted that the seam or division in question being to the right of the center of the sidewalk looking south, plaintiff, who was proceeding in that direction, of necessity must have travelled along or on said seam or division, and because of the very nature and location of said unevenness, she, in the exercise of reasonable care, would not ordinarily have discovered anything prior to the turning of her right ankle to cause her to have changed her course. As it stood, the unevenness was somewhat of a trap or a hidden defect which ordinarily would not be readily observed by a pedestrian, especially a stranger, travelling south on the sidewalk in question.
As we envision the condition of the sidewalk at the point of the accident, people could differ as to whether or not it was “out of repair” in the statutory sense. So, whether the sidewalk was out of repair becomes a practical question to be determined by its particular circumstances. And this was a matter for the jury.
Roth v. City of Moundsville,
118 W. Va. 283, 190 S. E. 332;
Taylor v. City of Huntington,
126 W. Va. 732, 30 S. E. (2d) 14.
We do not think that plaintiff’s testimony, on cross-examination, to the effect that she fell over against the front of the restaurant, limited the accident to a point where the variance of elevation in the two seams of concrete was only three-eighths of an inch. It appears from the evidence that plaintiff did not accompany the jury at the time of the view. And it is quite clear from her testimony that she fell at a point where the difference in elevation was one and one-fourth inches.
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Riley, President:
This is an action by Maude V. Smith to recover damages for personal injuries alleged to have been sustained by reason of a sidewalk being out of repair. The defendant, City of Bluefield, prosecutes error to a judgment, based on a jury verdict against it in the amount of $2,716.75.
A preliminary question was raised on special plea and demurrer to the amended declaration regarding the State Road Commission’s responsibility, if any, for the upkeep of the sidewalk. It is contended on behalf of the city that the action of the road commissioner, designating Federal Street as a part of the primary road system, obligated the commission to maintain not only the vehicular part of Federal Street, but the contiguous sidewalks as well. In this regard it should be noted that the statute (Chapter 40, Article X, Section 17, Acts, West Virginia Legislature, First Extraordinary Session, 1933, formerly Code, 17-9-33) gives a right of action to “any person who sustains an injury to his person or property by reason of * * * any street or sidewalk or alley in any incorporated city, town or village, being out of repair.” Whereas, Chapter 40, Article IV, Section 26, Acts, West Virginia Legislature (1st Ex. Sess.), 1933, under which the Road Commissioner designated Federal Street as part of the primary road system of the State, speaks only of “streets” and “bridges”. “Streets” as used in this statute, in our opinion, relates to that portion of the designated municipal thoroughfare which is devoted to vehicular traffic and not to “sidewalks”. The obvious purpose of the right to designate was to insure continuous and satisfactory vehicular traffic through municipalities. If it had been the intention
to
relieve the municipalities of the responsibility of maintaining sidewalks along designated streets, we believe the statute would have so provided, by specifically mentioning “sidewalks” along with “streets”. Such being the case, the City of Bluefield is subject to action for damages for injuries sustained by reason of its sidewalks being out of repair.
The portion of the sidewalk claimed to be out of repair is located on the west side of Federal Street and directly north of the Scott Street intersection. A restaurant, known as Leslie’s Car Diner, stands on the northwest corner of the intersection, facing Federal Street. The sidewalk in front of Leslie’s is divided into two strips by a seam or division, running parallel with the street, the
width of the outside strip being seven and one-half feet (except at the corner where it is rounded to some extent) and the inside strip two feet, respectively. This division continues across the sidewalk flanking Leslie’s on the south to the curb line of Scott Street. At a point along this seam, or division, between the two strips and to the south of the building line, the inside edge of the seven and a half-foot cement slab was almost one and a quarter inches above the adjoining edge of the two-foot strip. This uneveness in elevation of the edges tapered off in both directions to a common level, its whole length totalling approximately three feet. The witnesses in testifying concerning this uneveness in the edges of the two strips of cement speak of a “depression” along the edge of the two-foot strip, thus indicating a “sag” in the eastern side of the latter strip, rather than a “hump” in the wide strip.
The alleged accident occurred April 10, 1946. Plaintiff, who lived at Welch, had come to Bluefield on business. A few minutes prior to the accident she had alighted at the bus terminal just north of Leslie’s Car Diner, and was on her way to the OPA offices. To reach her destination from the bus terminal, the usual course for a pedestrian to take was to travel south on the sidewalk heretofore described. Plaintiff says that as she proceeded on her way a part of her attention was given to the crossing immediately ahead, and that she did not notice any defect in the sidewalk until the heel of her shoe on her right foot turned, due to the uneveness of the edges of the two strips of cement, causing her to fall.
The city contends, among other things, (1) that the uneveness in the sidewalk, as heretofore described, was not such a defect as would render the sidewalk “out of repair” within the meaning of the statute; (2) that the plaintiff, by her own testimony, fixed the location of the accident at a point along the seam about one foot north of the greatest difference in elevation between the edges of the cement slabs, that is, at a point where there was only three-eighths of an inch difference; and (3) that plaintiff was guilty of contributory negligence.
The defendant cites
Yeager v. City of Bluefield,
40 W. Va. 484, 21 S.E. 752, to the effect 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 are in a reasonably safe condition for travel in the ordinary modes with ordinary care, by day or night.” Also cited are
City of Roanoke v. Sutherland,
150 Va. 749, 167 S. E. 243, and
Childrens v. City of Richmond,
181 Va. 267, 24 S. E. 2d 419, in both of which the question whether the street was so defective as to constitute a liability on the city was disposed of as a matter of law. It is contended on the part of the City of Bluefield in the instant case that the facts are so well established and unequivocal that the trial court should have proceeded in like manner upon considering the demurrer to the amended declaration. In this regard it should lie noted that the seam or division in question being to the right of the center of the sidewalk looking south, plaintiff, who was proceeding in that direction, of necessity must have travelled along or on said seam or division, and because of the very nature and location of said unevenness, she, in the exercise of reasonable care, would not ordinarily have discovered anything prior to the turning of her right ankle to cause her to have changed her course. As it stood, the unevenness was somewhat of a trap or a hidden defect which ordinarily would not be readily observed by a pedestrian, especially a stranger, travelling south on the sidewalk in question.
As we envision the condition of the sidewalk at the point of the accident, people could differ as to whether or not it was “out of repair” in the statutory sense. So, whether the sidewalk was out of repair becomes a practical question to be determined by its particular circumstances. And this was a matter for the jury.
Roth v. City of Moundsville,
118 W. Va. 283, 190 S. E. 332;
Taylor v. City of Huntington,
126 W. Va. 732, 30 S. E. (2d) 14.
We do not think that plaintiff’s testimony, on cross-examination, to the effect that she fell over against the front of the restaurant, limited the accident to a point where the variance of elevation in the two seams of concrete was only three-eighths of an inch. It appears from the evidence that plaintiff did not accompany the jury at the time of the view. And it is quite clear from her testimony that she fell at a point where the difference in elevation was one and one-fourth inches. This latter point was one foot south of the place where defendant contends plaintiff’s cross-examination fixed it.
We do not think that defendant’s contention that plaintiff was guilty of contributory negligence, as a matter of law, is tenable.
Taylor v. City of Huntington, supra.
While a pedestrian walking along a public sidewalk cannot be indifferent to dangers in his pathway he is not required to keep his eyes fixed upon the sidewalk immediately in front of him. All that is required of him is the use of that degree of care which an ordinary prudent person would use under similar circumstances. We are of the opinion that the trial court properly overruled defendant’s motions for a directed verdict.
Another error assigned is that the jury’s verdict was excessive. After reviewing the medical care required during the period from April 10, 1946, the date of the injury, and May, 1947, the time of the trial, counsel asserts that the fact that only one of the four physicians had been called to testify indicates that their evidence would have been prejudicial to plaintiff. Also that the amount of §2,716.75 strongly suggests an improper quotient verdict. The record shows that at the time of the accident plaintiff was earning at least one hundred dollars a month as a saleslady for Maytag Company; that since the accident, had she been able to return to work, she would have earned at least one hundred dollars a month, or twelve hundred dollars a year; that prior to her injury she had been able to do all her house work, in addition to her sales work; and that before war shortages she had made more than
two hundred dollars a month. Another element of damages is that plaintiff suffered severe pain and anguish as the result of her injuries. In these circumstances we are of the opinion that it does not plainly appear that the verdict of the jury resulted from “mistake, partiality, passion, prejudice or lack of due consideration of the evidence”.
O’Flaherty v. Tarrou,
130 W. Va. 326, 43 S. E. (2d) 392;
Webb v. Brown & Williamson Tobacco Company,
121 W. Va. 115, 2 S. E. (2d) 898.
We see no error in the three instructions given on behalf of plaintiff. While instruction No. 1 was objected to on the ground that it used the words of the statute “out of repair” without defining the same, plaintiff’s instruction No. 2 (not objected to) told the jury that a sidewalk is out of repair, when, by reason of defects or obstructions on the surface of the sidewalk, the said sidewalk is unsafe for reasonable use by pedestrians, while in the exercise of reasonable care. Defendant’s instruction No. 1, a peremptory instruction, was properly refused. Defendant’s instruction No. 4 was also properly refused. It told the jury in effect that if they believed from the evidence that the defect was open and obvious and that plaintiff failed to choose a safe path around the same, such failure constitutes negligence, barring recovery. This ignored the fact that plaintiff testified that she did not see the defect prior to falling. This phase of the case was, however, substantially covered in defendant’s instruction No. 3, which was not challenged.
Inasmuch as the plaintiff prevailed in the circuit court, and the further fact that the judgment of the circuit court must be affirmed, it becomes unnecessary to deal with plaintiff’s cross-assignment of error, which challenges the action of the trial court in overruling her motion to exclude from the panel of twenty jurors selected in the case “any and all citizens or taxpayers of the City of Bluefield, a municipal corporation” pursuant to provisions of Code, 52-1-18.
The judgment of the circuit court must be affirmed.
Judgment affirmed.