Burcham v. City of Mullens

Haymond, Judge,

dissenting:

I can not agree to the decision of the majority, which affirms the judgment of the circuit court in favor of the plaintiff, and I respectfully register this dissent.

The burden was upon the plaintiff to show, by adequate and competent proof, that the section of the sidewalk where she fell and sustained the injuries of which she complains was out of repair and that its unsafe condition at that place was the proximate cause of her injuries. The evidence introduced in her behalf does not satisfy that essential requirement.

*422 No witness who testified saw the plaintiff fall and no one except the plaintiff knows the exact location at which she fell, or how her fall occurred, or what caused her to fall. She testified that .she fell on the platform section of the sidewalk, which extended along and parallel with the side of the hill, and was located between and at right angles to the upper section and the lower section of the sidewalk which were composed of flights of steps and extended up and down the hill; and that she descended the upper flight of steps, came to the platform, and then “started out on the platform and got a little past midways, and then all at once it gave way, and I fell. I started to fall downhill and then I caught myself, and I fell this way.” The direction in which she “fell this way” is not clear from her quoted statement but later in her testimony she stated she fell toward the uphill side of the platform which, in direction, was opposite to that in which she “started to fall” and “caught” herself before she fell.

In her examination in chief the plaintiff was asked these questions and gave these answers: “Q Will you tell the jury, Mrs. Burcham, about what position that platform was, examining Plaintiff’s Exhibit A, at the time of your injury? A It was not good. It looked like it was in good order, the platform, and I didn’t step on the end of the plank, that one board there, it give way. Q Which side gave way, Mrs. Burcham? A The right side — the left. Q The right side? A You said- — yes; the right side. * * *. Q You walked out to about halfway, and then the platform tilted on you, didn’t it? A I don’t know what happened. My feet — I just fell, and I started to fall downhill, and then I caught myself, and I struck my head on the rock and broke my glasses, too, when I fell. Q Did it knock you unconscious— A When I came to I commenced hollering for help, and this girl run out and helped me up. * * *. Q What position were you in when you came to — could you recognize where you were? A I had blood all over me, all over my face and clothes. I don’t know what happened to me. * * *. Q Were you on the platform when you came to? A I *423 had got up and sat back down. I was laying on the platform, part of me.”

The husband of the plaintiff, who apparently was at home when she was injured, examined the section of the platform on which his wife fell after she had returned to their home. The time at which he examined the platform is not clearly shown but it was at least more than thirty minutes after the plaintiff had fallen. He found the rock mentioned by the plaintiff and located it about two feet above or north of the platform which shows that the plaintiff fell toward or up the hill although she testified that the right or down the hill side of the platform “gave way.” He testified that he went upon the platform and jumped “up and down” on it, and that the lower side then “gave” two or three inches “where my weight was.” He found that the stringer which supported the lower side of the platform was “soft, rotten, full of moisture.” He put a rock under the stringer which helped the platform “considerably.” On cross examination he was asked these questions and gave these answers: “Q When you stepped on the platform, when your right foot went down, it gave way to the right and you examined at that place? A Yes, sir. Q And that was the worst part you found in the stringers? A Yes, sir.” As to the cross planks or boards which formed the floor of the platform which appears to have been about three feet in width he was asked these questions and gave these answers: “Q And you cannot tell whether they gave down in the soft wood or not? A I don’t know that they imbeded in the wood, but they were all kind of down on the top because of this decayed part along here. Q Were the ones all right next to bank? A They were seemingly. Q Were the one holding on that side? A As far as I could tell. Q That was, the stringer was down on the ground? A As far as I know they were all in. The boards weren’t tight on the whole thing. Q The ones were all right on the right hand side down on the hill? A They were most all holding. There was cracks and decay between the boards.”

Several witnesses produced by the plaintiff who were *424 familiar with the location and the condition of the sidewalk, including the platform, at and prior to the time the plaintiff fell in November, 1950, and who used the sidewalk frequently, testified that the sections of the sidewalk which consisted of flights of steps above and below the platform were in bad condition; that some, of the boards forming the steps were broken or missing; and that the supporting stringers “sagged”; but none of these witnesses testified that any such condition existed in the platform or that the platform ever sank, or gave way, or tilted with any of them.

In April, 1951, about six months after the plaintiff fell, the entire sidewalk, including the platform, was replaced. The two contractors who dismantled the platform on which the plaintiff fell, as witnesses produced in behalf of the defendant, testified that though the condition of the steps was “bad” the platform was in “fairly” good condition; that the stringer, about which the husband of the plaintiff testified, was intact, and not broken; and that they did not observe that any part of it was in a rotten or decayed condition. There is no showing that there was any change in the condition of the material in the construction of the platform between November 1950, when the plaintiff was injured, and April 1951, when the platform was removed and replaced with a new platform near the old location. A mail carrier, who used the platform a few minutes before the plaintiff fell in the afternoon of November 27, 1950, and who used it on each day that he carried mail between that date and April 1951 when the platform was removed, found nothing unusual in its condition, and, during that period, when he travelled over the platform, it did not sway or tilt or sag.

The evidence shows that the sections' of the sidewalk consisting of flights of stairs above and below the platform were out of repair but that condition of those sections did not cause the plaintiff to fall and they have no connection with her injuries. The evidence, however, fails to show that the platform, at any point, was out of repair within the meaning of Section 17, Article 10, Chapter 40, Acts *425 of the Legislature, 1933, Extraordinary Session (Section 17, Article 10, Chapter 17, Michie’s Annotated Code, 1949), which imposes liability upon a county court for injuries sustained by any person by reason of any road or bridge under the control of the county court “being out of repair” and upon a municipal corporation for injuries sustained by any person by reason of any street, sidewalk or alley which the municipal corporation is required by its charter to keep in repair “being out of repair.”

As already pointed out the platform upon which the plaintiff fell was not broken and the floor of the platform was not uneven. The stringer, which the plaintiff’s husband testified was soft or rotten in one place, was firm and intact both before and after the plaintiff fell and there was no obstruction upon the platform which could reasonably be expected to cause the plaintiff to fall. As far as the evidence discloses the platform was firm and strong before and after the plaintiff fell. There is no testimony by any of the numerous persons who used it, including the plaintiff and her husband, that the platform ever sank, sagged or tilted except when the plaintiff fell and later the same day when the plaintiff’s husband jumped “up and down” on it to make it sag or go down a few inches below its customary level or elevation. That the platform tilted or sagged to the extent of a few inches, when the plaintiff fell, and later when her husband jumped “up-and down” on it, does not render it out of repair within the meaning of the statute.

This Court has said repeatedly that a public street or a public sidewalk to be out of repair must be in a condition which renders it dangerous to persons using it with ordinary care and in the usual modes by day or by night. Rich v. Rosenshine, 131 W. Va. 30 , 45 S. E. 2d 499 ; Taylor v. City of Huntington, 126 W. Va. 732 , 30 S. E. 2d 14 ; Thompson v. City of Charleston, 118 W. Va. 391 , 191 S. E. 547 ; Roth v. City of Moundsville, 118 W. Va. 283 , 190 S. E. 332 ; Patton v. City of Grafton, 116 W. Va. 311 , 180 S. E. 267 ; Williams v. Main Island Creek Coal Company, 83 W. Va. 464 , 98 S. E. 511 ; Johnson v. City of Huntington, *426 82 W. Va. 458 , 95 S. E. 1044 ; Whittington, Admr., v. County Court of Jefferson County, 79 W. Va. 1 , 90 S. E. 821 ; Boyland v. City of Parkersburg, 78 W. Va. 749 , 90 S. E. 347 ; Stanton v. City of Parkersburg, 66 W. Va. 393 , 66 S. E. 514 ; Parrish v. City of Huntington, 57 W. Va. 286 , 50 S. E. 416 ; Arthur v. The City of Charleston, 51 W. Va. 132 , 41 S. E. 171 ; Waggener 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 ; Wilson v. City of Wheeling, 19 W. Va. 323 , 42 Am. Rep. 780 . This Court has also held that an alleged defect consisting of a slightly raised portion of a public sidewalk of a city upon which a thin covering of ice and snow occurred and which was made slippery by children coasting upon it does not render the sidewalk out of repair within the meaning of the statute, Holsberry v. City of Elkins, 86 W. Va. 487 , 103 S. E. 271 ; and that every defect in a city street or sidewalk, though it may cause an injury, is not actionable under the statute. Waggener 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 .

The evidence does not show that the condition of the platform was the proximate cause of the injuries sustained by the plaintiff as a result of her fall. The only person who found a defect in any part of the platform was the plaintiff’s husband. The plaintiff found none. The defect which he says he found and which no other person discovered, consisting of a soft or rotten space a few inches in length on one stringer, did not cause him to fall when he was examining and testing the platform; and that condition did not cause and could not have caused the plaintiff to fall. Though she testified that the tilting or the sagging of the platform on its right or down hill side caused her to fall in the opposite direction and toward the uphill side of the platform, a statement which is of doubtful credibility, her own testimony that she did not know “what happened” to her and that she “just fell” indicates clearly that an attack of dizziness, to which she was subject because of hypertension from which she suffered, or the manner in which she walked on the platform, and not *427 its condition, caused her fall. To conclude from the testimony given by her and her husband that the condition of the platform, which had never sunk, sagged or tilted before, was the proximate cause of her fall, is sheer conjecture and speculation. “A jury will not be permitted to base its findings of fact upon conjecture or speculation.” Point 1, Syllabus, Oates v. Continental Insurance Company, 137 W. Va. 501 , 72 S. E. 2d 886 ; Ritz v. Kingdon, 139 W. Va. 189 , 79 S. E. 2d 123 .

It can not be said, with any degree of reason, that a platform, composing a section of a sidewalk, which was unobstructed, even, intact, firm and solid at all times before the plaintiff, in walking upon it, fell when it sank or tilted a few inches and, a half hour or more later on the same day, again sank or tilted when her husband caused it to do so by jumping “up and down” on it, and did not subsequently sink or tilt when used by other persons walking on it, was, when the plaintiff fell, in a condition which rendered it dangerous to persons using it with ordinary care and in the usual modes by day or by night, or that the platform, as a part of the sidewalk, was out of repair within the meaning of the statute.

As the verdict is not supported by evidence which showed the platform to be out of repair at the time she fell or that she fell as a result of any such condition of the platform, the verdict should have been set aside by the trial court. “Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed, and the case remanded for a new trial.” Syllabus, DeLuz v. Board, 135 W. Va. 806 , 65 S. E. 2d 201 ; Point 1, syllabus, Wickline v. Monongahela Power Company, 139 W. Va. 732 , 81 S. E. 2d 326 . The verdict is also against the decided weight and preponderance of the evidence and for that reason should have been set aside by the trial court. Kap-Tex, Inc. v. Romans, 136 W. Va. 489 , 67 S. E. 2d 847 ; Wickline v. Mo nongahela Power Company, 139 W. Va. 732 , 81 S. E. 2d 326 ; Stenger v. Hope Natural Gas Company, 139 W. Va. *428 549 , 80 S. E. 2d 889 ; Ritz v. Kingdon, 139 W. Va. 189 , 79 S. E. 2d 23 ; Sammons Brothers Construction Company v. Elk Creek Coal Company, 135 W. Va. 656 , 65 S. E. 2d 94 ; Burgess v. Gilchrist, 123 W. Va. 727 , 17 S. E. 2d 804 , 138 A. L. R. 676; Huntington Development and Gas Company v. Topping, 115 W. Va. 364 , 176 S. E. 424 ; Armour Fertilizer Works v. Finnell, 112 W. Va. 325 , 164 S. E. 253 ; Cannady v. Chestonia, 106 W. Va. 254 , 145 S. E. 390 ; McKown v. Citizens’ State Bank of Ripley, 91 W. Va. 716 , 114 S. E. 271 ; Dexter and Carpenter, Inc., v. Co-operative Fuel Company, 90 W. Va. 465 , 111 S. E. 153 ; Palmer v. Magers, 85 W. Va. 415 , 102 S. E. 100 ; Kelley v. Aetna Insurance Company, 75 W. Va. 637 , 84 S. E. 502 ; Fuccy v. Coal and Coke Railway Company, 75 W. Va. 134 , 83 S. E. 301 ; Priddy v. Black Betsy Coal and Mining Company, 64 W. Va. 242 , 61 S. E. 163 ; Coalmer v. Barrett, 61 W. Va. 237 , 56 S. E. 385 ; Chapman v. Liverpool Salt and Coal Company, 57 W. Va. 395 , 50 S. E. 601 ; James Clark Distilling Company v. Bauer, 56 W. Va. 249 , 49 S. E. 160 ; Limer v. Traders Company, 44 W. Va. 175 , 28 S. E. 730 .

For the foregoing reasons I would reverse the judgment of the Circuit Court of Wyoming County, set aside the verdict of the jury, and award the defendant a new trial.

I am authorized to state that Judge Browning concurs in the views expressed in this dissent.