Belvin v. City of Richmond

| Va. | Dec 13, 1888

Lead Opinion

Lacy, J.,

delivered the opinion of the court.

The case is as follows: Judge Atkins, the judge of the hustings court of the city of Richmond, who was holding his court in the building used for that purpose, found himself and his court so annoyed by tbe noise of passing vehicles along Capitol street, on which the said building was located, that he caused ropes to be stretched across this street during the hours when his court was sitting, each day of sitting. The ropes were such as are commonly used to obstruct streets when for any cause travel is to be suspended on a street—orders obtained from the city engineer for the purpose. These ropes were an inconvenience to the traveling public, who were thus compelled to go around one square when going that way, so the city authorities protested, through the mayor, against the use of the ropes, but nevertheless they were maintained by the court, and had been in use two years when, on the 21st day of February, 1887, tbe plaintiff’s wife was driving along Capitol street in a top-buggy, drawn by one horse, about four or five o’clock in the afternoon of that day. The janitor was in the act of taking down one rope, the first reached by the buggy. When the plaintiff’s wife came up, the janitor said to her he would let her pass in a moment, and then took the rope down. As she passed he told his little son to run on, up to the other rope, and unfasten that. The buggy reached this last rope before the boy could take it down, and it being in full view, so that it was seen by a witness who was sixty yards off. The plaintiff’s wife, being unable to pass the rope in the middle of the street, where it hung lower than at the ends, drew the horse to one side, and drove to the gutter, close to the sidewalk, where the rope was hung higher up, and attempted to drive under it, but tbe horse’s head struck the rope and he stopped, hut, being urged forward, he went under, and the buggy top was caught by the rope, the buggy upset, and the plaintiff’s wife thrown out and injured, so as to require the attention of a doctor. This action was brought thereupon against the city for damages on account of the injury received by the plaintiff’s wife. At the trial, the judge instructed the jury as follows: “The court instructs the jury that if they believe from the evidence that the rope complained of in the declaration was put there by order of the judge of the hustings court for the purposes set forth in his subsequent written order of July 7, 1887, then they must find for the city of Bichmond,” and refused all other instructions, and the plaintiff excepted, and, there being a verdict for the defendant, and a motion to set aside the same overruled, the plaintiff applied for a writ of error to this court, which was awarded.

We are of opinion that the instruction given by the circuit court, and excepted to by the' plaintiff, is plainly right. The judge of the hustings court of the city of Bichmond is the judge of a State court of equal dignity with the circuit courts of the State. In the administration of justice in that court, the said judge is charged with the preservation of order in his court, and to see to it that the due administration of justice is not obstructed by any person or persons whatsoever, and to this end he may rightfully summon to his aid, if necessary, the whole power of the Commonwealth. He had certified that the passing of vehicles to and fro on Capitol street in front of the courtroom of his court, during the sitting of his court, obstructed the proper administration of justice therein. If this was so (and thatv such was the case is not denied, and is no doubt perfectly true), then either the court-room should have been removed or the travel of these vehicles stopped during the sitting of this court, which latter involved no great hardship, it requiring only a short drive to pass around on the other side of the square. But, however this may he, it is perfectly clear that the city had no agency in the matter. The city, through its highest officer, had entered its protest against the obstruction; but the judge, regarding the due administration of justice of more importance than the use of a carriage-way of a few yards during a portion of each day, refused to remove the ropes. The city could do no more, unless it had instituted legal proceedings about the matter. The city was certainly powerless to remove the ropes, being, like all other persons, bound by the orders of the court until reversed by some competent tribunal. The ropes being only used in daylight, and being of size sufficient, with white flags attached to the middle, were such obvious obstructions as not to suggest danger to any but the blind, and the matter of convenience appears to he small in comparison with the rights involved in the due administration of justice in such a court as this. It would be a farce to enter upon the trial of the rights of a citizen, either of person or of property, and to take the evidence before the triers of the fact under such circumstances that the final arbiters could not hear what the evidence was. Such would be a mock trial and a moot court. No judge should be expected to hold a court under such circumstances. It is said that it is the duty of the city to provide a suitable court-house. That may he admitted, and there is no reason to believe that the city of Richmond will not so provide such a suitable place as soon as it may be done.

This disposes of the case; hut, if that question arose, it appears that the accident (which is much to be regretted, as it hurt a lady and a little child) resulted not from the fault of the city or the hustings court judge, but the imprudence or incaution of the lady, who, in trying to pass under this rope, doubtless forgot that the buggy-top was up, and was higher than her head, which safely passed under the rope, which struck the buggy-top without striking her. The judgment of the circuit court of Richmond is plainly right, and must be affirmed.

Fauntleroy, J., and Hinton, J., concurred in the result.

Richardson, J., concurred in the opinion.

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Concurrence Opinion

Lewis, P.,

concurring, said:

The order was necessary to secure the quiet essential to the proper administration of public justice. Judge Atkins, without ■consulting anybody, had the authority to put the rope up, and the city was not responsible therefor. Indeed, had the mayor or police gone there to take down the rope, the judge would have been justified in putting them in jail, and no doubt would have done so. It is for a judge to exercise a reasonable discretion in cases such as this, and no general rule can be laid down; but this court would not countenance any needless or wanton exercise of this power on the part of a judge. For a court of justice not to be able to secure the quiet necessary to allow judge and jury to hear the witnesses and counsel, would make the proceedings in that court a farce. He concurred in the instruction of the circuit judge, who said to the jury if they believed the rope was put up by the order of the hustings court, that ended the case.

Judgment abbtrmed,