The Clarksburg telegram. [volume] (Clarksburg, W. Va.) 1874-1926, 1896-07-03

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ties and town in oppressive dam
ages. This disposition grows
1t has probably been inspired b.
a misapplication Of Language use'
in former decisions Of this court
which is construed as defining
what kind of defects give action
rather than as defining the char
acter Of the liability when onc'
an actionable defect exists.
When the court has heretofore
said that the liability of The
town is absolute whether it hat
notice Of the defect or not, it was
not meant that the presence o.
any and every defect 10 4 street
contributing to an injury would
render the town liable, without
regard to the character of the
defect, but that when once such
a defect was shown as would be
actionable then the liability was
absolute in character. whether
the town had notice of the de.
feet or not. The statute does de-
fine the characterof liability /; or
rather the liability which it i'm
poses is absolute in character
when the cause or ground of
liability exists; but it does not
define that cause or ground Of
liability by saying what manner
of defect in a street will fix that
liability, leaving this an open
question in each case. to be de.
termined under all the circum.
stances, taking into consldera.
ton the physical structure and
nature of the country, it's climate
and other things naturally peril
nent to the matter. If this con-
struction of the statute is not
given, then our counties and
towns must keep watchnen on
on their streets and roads to dis.
cover every deterioration in them,
from weather and wear and IN
stantly repair them at all seasons;
in short, keep them in that high
state of repair which would tax
most of the counties and towns
of the State beyond their capaci.
ty TO bear. Such a construction
would beget innumerable suits.
Such construction would make
counties and towns insurers
against all accidents Detailing
travellers. This line of distlnc.
tlon is drawn 10 Yeager VS.. City
of 8Bluefeld, 40 w. Va, 81 S. E.
752. That case also asserts the
doctrine that municipal corpo.
ration is not an insurer against
accidents on streets and side.
walks; that every defect therein,
though it may cause the injury
sued for, is not actionable ; that
it is sufficient if the streets are in
a reasonably safe condition for
travel in ordinary modes, with
ordinary care; and that whether
they are or are not is a practical
question to be determined in each
case by its particular circum-
stances. Wilson VS.. City of
Wheeling, 10 w. Va. 323 Phil
lips VS.. Court, 80 id. Az; 9 Dill.
Nun. Corp. sec. 1905 Elliott,
Roads and S. AS Turner VS..
City, 4 Am. st. r. 453 Hubbard
VS.. City, So Am. d. $50, will sup.
port these views.
In our country, with its varia.
BILE climate. repeated and heavy
falls of rain and snow and muddy
soil, and small population it is not
practicable to keep our roads in
ahigh state of repair; we cannot
have what in other States and
countries are known as good
roads, Judge Dillon in Nun,
Corp. loo3, appropriately states
it as law that in determining
whether road is in such con.
dition as the law contempla.es,
we must regard 1.-The nature of
the country, the character of the
highways, and the care usually
exercised in reference to such
highways" In the leading case
of Hubbard VS.. City. So N. II. 80.
$50 Am $40, is held that wheth.
err the highway is or is not in
suitable repair for the traveJ
passing thereon is aquestion TO,
the Jury under the nartinnla,