I can not agree to the judgment of this Court in affirming the action of the trial court in submitting to the jury the question whether the sidewalk on which the plaintiff fell and sustained the injuries of which she complains was out of repair within the meaning of Section 17, Article 10, Chapter 40, Acts of the Legislature, 1933, First Extraordinary Session, and in refusing, under the undisputed evidence of the nature of the alleged defect, to instruct the jury to render a verdict for the defendant. This action of the trial court was clearly erroneous and, for that reason, I dissent.
The alleged defect in the sidewalk consisted of a slight difference in elevation between the adjoining edges of two of its large concrete sections. At a location approximately three feet from the place where these sections joined on the same surface elevation the edge of one section had subsided on a gradual slope to a depth of one and one fourth inches below the adjoining edge of the other section. There was no obstruction upon the surface and, other than this difference in elevation, which at the lowest point was only one and one quarter inches, the sidewalk, properly constructed and nine and one half feet in width, was without even the slightest defect or irregularity. The character of this obviously trivial inequality in its surface was shown by evidence which was free from conflict or dispute. The prior decisions of this Court firmly establish and, until the present decision, had settled in this jurisdiction, the principle that when the evidence of a defect or an obstruction in a public street or highway is clear and without conflict the question whether the particular defect or obstruction is such as to render a municipality liable for an injury directly resulting from it is one of law for the court. Parrish v. City of Huntington, 57 W. Va. 286,50 S.E. 416; *Page 46 Silverthorn v. City of Chester, 106 W. Va. 613, 146 S.E. 614;Taylor v. City of Huntington, 126 W. Va. 732, 30 S.E.2d 14. See also Whittington, Adm'r. v. County Court of Jefferson County,79 W. Va. 1, 90 S.E. 821. Decisions of appellate courts in other jurisdictions are to the same effect.
An inequality of two inches or less has been held, as matter of law, not to render a sidewalk unsafe for public travel.Northrup v. Pontiac, 159 Mich. 250, 123 N.W. 1107. An irregularity of one and five eighths inches in cement blocks of a sidewalk does not, as matter of law, make it unsafe for public travel or render a city liable for injuries to a pedestrian who stumbled upon it. City and County of Denver v.Burrows, 76 Colo. 17, 227 P. 840.
In Gastel v. City of New York, 194 N.Y. 15, 86 N.E. 833, 128 Am. St. Rep. 540, 16 Am. Cas. 635, it was held that there was no liability upon the part of a municipality for injuries sustained by a pedestrian who tripped and fell upon a sidewalk by reason of a difference of approximately an inch in the elevation of its adjacent portions. In that case the New York Court of Appeals, in language which is peculiarly applicable in this case, said: "If the full description of the alleged defect in a municipal case shows that it was of such a trivial character that it was not naturally dangerous, and must almost inevitably occur in the many street miles of a city unless a greviously burdensome degree of care and expense is to be exacted, a recovery will not be allowed even though witnesses have testified to prior accidents. The familiar rule of damnum absque injuria will be applied, and travelers' mishaps will be charged to their own carelessness or to unavoidable mischance rather than to the treasury of the city. We think that such is the present case. We have had a description of the sidewalk complained of. The difference in level was small, averaging for the entire width of the walk about one inch. There was no space under the upper edge in which the foot might catch, and the walk was not broken or otherwise out of repair. We think we may take judicial notice of the fact *Page 47 which ordinary observation discloses that there is scarcely a rod in the streets of any city in which there may not be discovered some little unevenness or irregularity in sidewalks, crosswalks, curbs or pavements. As a result of various causes, climatic and otherwise, they are constantly occurring and recurring. Ordinarily they cause no difficulties, and it would require a vast expenditure of money to remove them all. The recent tendency of the law as evidenced by legislative enactment has been in the direction of making less rather than more stringent the rules of municipal liability in such cases, and directing our considerations to the precise facts here presented, we think that we should be disregarding those principles of liability which are justified by reason and public policy if we should permit a recovery." In Davidson v.City of New York, 133 A.D. 352, 117 N.Y.S. 185, the Appellate Division of the Supreme Court of that State held that a flagstone in a sidewalk six feet wide which extended at the highest point two and one half inches above the other stones and gradually decreased in height until it became level with them was not a defect which would render a city liable for injuries to a person who tripped and fell upon it. In the opinion in that case the Court said: "It is impossible to free a city from such slight defects, and unreasonable to say, or permit a jury to say, that they are 'obviously dangerous', which is the test of the city's liability. We know that they are not. If they were, thousands and thousands would be hurt by them hourly. That it is 'possible' for some one out of many, out of millions, it may be, to trip on such a defect does not make it dangerous."
In the case at bar it is clear, so clear that reasonable minds may reach but one conclusion, that the trivial and insignificant irregularity in the sidewalk, did not, as matter of law, render it out of repair, in the statutory sense, and that language has been held, by numerous decisions of this Court, to mean not safe for travel in the usual modes with ordinary care by day or by night. Rich v. Rosenshine, 131 W. Va. 30,45 S.E.2d 499. The exact and unquestioned description of the nature of the *Page 48 irregularity indicates plainly that it was not of such character as to render the sidewalk out of repair, within the meaning of the statute and, for that reason, as matter of law, the city was not liable.
The character of the alleged defect, which is disclosed by uncontroverted evidence, is common in and incapable of prevention from sidewalks in practically every municipality in this State. It is neither dangerous nor unsafe for any person exercising ordinary care in walking upon a sidewalk in which it exists and, tested by any reasonable standard of common experience, it is difficult to understand how it could cause any person, other than one who desired and endeavored to do so, to fall in traveling over it, and a person desiring and trying to fall would have fallen if it had not been present. As it is neither dangerous nor unsafe, a jury should not be permitted to find that it is either; and a finding to that effect, contrary to a well settled principle of law, should not be given judicial sanction.
The majority opinion seeks to justify its affirmance of the action of the trial court in submitting to the jury the question whether the sidewalk was out of repair within the meaning of the statute on the ground that "people could differ as to whether or not it was 'out of repair' in the statutory sense" and in consequence the question was "a matter for the jury". In approving that course the opinion overlooks, and completely ignores, the correct and entirely different rule which, as stated in the syllabus in the case of Silverthorn v.City of Chester, 106 W. Va. 613, 146 S.E. 614, is "Whether or not a public road or street is out of repair, should be decided by the court where the facts are undisputed and are such as would reasonably support only one of two theories." It need only be said that manifestly, by the application of a wrong rule, which is unsound and unsupported by authority, the majority has reached the wrong conclusion on this vital and controlling feature of the case. *Page 49
In upholding the action of the trial court in this case the majority opinion, without either discussing or expressly overruling the cases which I have cited, has disregarded the previous holdings of this Court that the question now under discussion is, under the evidence, one of law for the court and not one of fact for the jury, and has impaired, if not destroyed, the force and the effect of those decisions. This is regrettable and, in my judgment, will inevitably give rise to confusion and instability in the law, beget extensive litigaton, and threaten the municipalities of this State with financial distress. I can not consent to or approve a decision which is likely to produce, or may render possible, any of those results.
The decision of the majority, though not expressly so declaring, in effect holds that a municipality is an insurer against injuries caused by any defect or irregularity in its streets and sidewalks and in that respect it is contrary to an unbroken line of cases in which this Court has repeatedly asserted that no liability of that character exists. More than sixty seven years ago, in the case of Wilson v. City ofWheeling, 19 W. Va. 323, 42 Am. Rep. 780, this Court unanimously decided, in Point 4 of the syllabus, that "A municipal corporation is not an insurer against accidents upon the streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes by night as well as by day, and whether they are so or not is a practical question to be determined in each case by its particular circumstances. * * *." The principles stated in the foregoing quotation have been recognized and approved in subsequent decisions, Yeager v. City of Bluefield, 40 W. Va. 484,21 S.E. 752; Van Pelt v. Town of Clarksburg, 42 W. Va. 218,24 S.E. 878; Waggener v. Town of Point Pleasant, 42 W. Va. 798,26 S.E. 352; Parrish v. City of Huntington, 57 W. Va. 286,50 S.E. 416; Holsberry v. City of Elkins, 86 W. Va. 487,103 S.E. 271; and have not been heretofore questioned or disregarded. On this point, because of its pertinence, and in *Page 50 the hope that it may be remembered and adhered to in the future, this passage is quoted from the opinion of this Court in Parrish v. City of Huntington, 57 W. Va. 286, 50 S.E. 416: "A city is not an insurer against accidents upon its streets and sidewalks. It is simply required to keep them in a reasonably safe condition for persons traveling in the usual modes by day and night, and using ordinary care. A man may stumble and fall anywhere — in a house or in a street; but, because he happens to fall in the street, it follows, by no means, that the city is responsible for the injury which he receives. There are slight inequalities in sidewalks, and other trifling defects and obstructions, against which one might possibly strike his foot and fall, but if the injury might be avoided by the use of such care and caution as every reasonably prudent person ought to exercise, for his own safety, the city will not be liable." Under this statement of the law, if properly applied to the condition of the sidewalk as shown by evidence which is without conflict or dispute and to the act of the plaintiff in falling at the location of the alleged defect which existed in it, there is no liability upon the part of the city in this action; and the trial court should have so decided as matter of law. If, however, a slight and trivial defect, such as that shown by undisputed evidence to have existed in this case and which common experience demonstrates to be neither dangerous nor unsafe, may be permitted to be found by a jury to be dangerous or unsafe and, in consequence, a city sidewalk, because of such defect, held to be out of repair within the meaning of the statute, as the majority now permits to be done, a municipality becomes for all practical purposes an insurer against accidents upon its streets or sidewalks resulting in injury to any person caused by any defect whatsoever. Such an intolerable result violates the sound, correct and generally accepted legal principles announced and applied in the decisions of this Court cited and referred to by me and, in my judgment, renders them inoperative and of no binding force or effect. To a departure from and a disregard of those principles I refuse to consent or agree. *Page 51
Upon the binding authority of the cited decisions of this Court I would, under the evidence, deny any right of recovery by the plaintiff, reverse the judgment, set aside the verdict and award the defendant a new trial in this action.
I am authorized to say that Judge Fox concurs in this dissent.