The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1882-03-31
THE LAW LAID Down.
In Reference to the Responsfsltity OF
Incorporated cities,

- NsSANftWNo ~ sue t4ENstuunfu1ttY OF
Incorporated cities.
We Published last Monday some points in
the case OF Margaret Wilson against tue city,
decided by the Supreme Court Of Appeals
last Saturday. Tie decision In the case
rested mainiy upon the responsibility Of In.
coFp0rated towns or cities for injury 10
persons on account OF distractions In the
strccts, and as this Is It mooted question, SIC
append the Syllabus In the case In full. The
opinion was delivered by Judge Raymond,
and Is as follows;
Margaret Wilson, plaintiff below, and dc.
PENDANT In error, Us. the City Of Wheeling,
defendant below and plaintiff In error
In the Supreme Court Of Appeals Of the
State OF West Virginia:
Syllabus Of points adj Indicated in the above
named case by said court, in which three Of
the Judges thereof concurred, Wiz
FtBt-A motion for continuance IL nd
dressed to the sound discretion OF the Court
under all the circumstances Of the case; and
although All APPELLATE court will supervise the
action Of the court below on such p,oton, II
will not reverse the judgment on that ground
unless such action Is plainly erroneous.
SecOnd-To Cntitle party to n contlnu.
anCe OIL the ground Of the absence Of n wit.
ness, II must be shown that he has used due
diligence TO procure his attendance; that he
Is material; that the same fact cannot be prov.
ed By any witness in attendance, and that the
party making the application cannot safely
go TO trial In the absence OF such witness.
Third-lt Is u principle OF nearly universal
occupation In this country when city or
town Is Incorporated and is given control
over the streets and alleys within the cor
porate limits, and Is empowered to provide
the means TO make and repair them, that
the corporation not only assumes this duty,
but by implication agrees to perform Il for
the benefit and protection OF all who may
have occasion to make use Of these public
easements, and that for failure In the dis.
charge Of this duty the corporation Is re-.
spOusiblG to the party injured.
F0Hrth-A municipal corporation Is not
an insurer against accident upon the streets
and sidewalks, nor Is any defect therein,
though II may cause the injury sued for,
actiOnable. 1t Is sufficient II the streets,
which include sidewalks and bridges there.
on, ara In u reasonably safe condition for
travel in the ordinary modes by nightas well
as by day; and whether they are 80 oT not Is
a practical question, to be determined In
each case by Its particular circumstances.
The ground OF the action Is either positive
mlsteasnnce on the part Of the corporation,
| 80 blhtSAo VI wants. VI W OkllGAa NIluGI
authority, In doing acts which cause the
streets to be out Of repair, in which case no
other notice 10 the corporation Is essential to
its liability; or the ground Of the action is
the neglect OF the corporation to put the
streets IN repair or to remove distractions
theretrom, or 10 remedy causes of danger
occasioned by the wrongful acts OF others.
| Fffth--Wherp dangerous excavation Is
made, and negligGntly left open, without
proper lights, guards or covering, in travelled
street or sidewalk, hya contractor under the
corporation for building s0wGr or other i'm.
provement, the corporation is liable to u per.
son injured thereby, although 1t may have nc
immediate control over the workmen.
Sixth'-When the work contracted for nee
essariiy'conssitHtes an obstruction or defect
in the streets Of such nature as to render II
unsafe or dangerous for the purposes OF pub
lie travel. unless properly guarded or pro,
teCted, the corporation equally with
the contractor engaged TO per
form, Is liable therefore 10 the injured
party. But the employees is not liable when
the obstruction or defect in the streets caus
ing the injury Is wholly collateral TO the con,
tract work, and entirely the result OF the
negligence or wrongful acts OF the contractor
or his servants.
Seventh-Whether street OF the city was
opened by It on paper or by condemnation
or dedication, il should not be held that the
city Is forthwith to regulate and grade It, or
that the city when it commences to improve
such street by grading, etc, has not the right
to temporarily ObstruCt it so far rs necessary
for the purpose OF grading and putting it IN
convenient and sale condition for the use OF
tue public without liability for such neces.
sary interruption to travel and Inconvenience
TO the public.
Eghth-But while for the purpose of
grading such street the city might obstruct
the passage Of travel over the same, it is not
authorized to leave such street, while under
going sVch improvements in such COndi-
ton US Unnecessarily TO expose those who
| tudy pass upon it to inconvenience or danger.
At such time such street should not be left
without protection or guard or beacon, es.
pectaity at night to warn persons against
such unnecessary danger.
Sinth.-lf such reasonable precautionary
measures are not adequate to the Safetyof the
citczens and Travellers the city " capable and
liable for injuries us it is when 1t prints one
Of Its graded streets to become unsafe for
want OF repairs
Tenth.-'lhe same principles necessarily
apply where the city temporarily obstructs
the passage OF travel etc, oyer one Of its
graded streets, In making necessary and
proper repairs thereof.
Eleventh.-The same principles apply
where such temporary obstruction is made
BY contractors who do the work, or such con.
tractors are directed by M officer or officers
of the city, authorized by the city to give
such direction, to the work which causes
obstruction, and the work is accordingly
done, and the work contracted to be done ne.
ceSSurly renders the street unsafe and dan
serouS for passage.
Twelfth-lf the authorities OF q city have
erected place us public sweet taking
charge OF 1t, and regulating it Us they do
other streets, and an individual Is injured in
consequence Of the negligent and careless
manner in which this is done, the corpora.
ton cannot, when It is sued for such injury,
throw the party upon an inquiry into the
regularity Of the proceedings by which the
land became street, or into the authority
BY, which the street was originally estab-
lished.
Thirteenth-ln actions against the city to
recover damages for injuries ocCasioned by
its streets being out OF repair, and the like
compensatory damages only should be given.
Vindtctive or punitive damages cannot DO re-
covered against the city in such cases.
FOurteenth-In such case there is rule
Tor the measurement OF damages, and the
rule is substantially that the damages must
be measured by the loss OF time during the
cure, and expense incurred in respect to it ;
the pain and suffering undergone by the
plaintiff and any permanent injury, espe.
cially when it causes disability for further
exertion in whole or in part, and consequent
ly pccuniary loss.
In this opinion Judges johnson, Hay
NNORI md (tTnnn NNnRnFFn1 Inl,vn Du1ta,,
did not sit at the hearingl
THE ECCLEs lXvEsrlGAnox.