112 Va. 419 | Va. | 1911
delivered the opinion of the court.
Mrs. Margaret Lee, a married woman, brought this action against the city of Portsmouth, and recovered a verdict and judgment for $3,000 as damages for personal injuries alleged to have been caused by reason of the plaintiff’s stumbling over a hose pipe lying in the street against or close to the curbing, at the intersection of High and Green streets in said city.
The gravamen of the declaration in the case is the alleged
The plaintiff lived on the west side of Green street, about two and one-half blocks from the scene of the accident, and on the evening of the accident she left her home aboút twenty minutes to eight o’clock to go to a theatrical performance about five blocks away, and which was to begin
■With respect to the foregoing facts there is no conflict of evidence, and the only material facts about which there is any conflict of testimony are, first, whether the hose pipe was lying up against the curbing of the sidewalk, as testified to by the defendant’s witnesses, or lying two or three feet away from it, as testified to by some of the plaintiff’s witnesses; and, second, whether the city’s servants put a red lantern on the curbstone on Green street, as testified to by several of the defendant’s witnesses, or there was no lantern there, according to the testimony of several of plaintiff’s witnesses.
The questions for our determination are, (1) was the defect in the street complained of actionable negligence on the part of the city; and (2), if the evidence be sufficient to sustain the charge of negligence, as found by the jury, was defendant in error, plaintiff below, free from contributory negligence concurring with the negligence of the city and causing her injury?
It has been repeatedly held by this court and is the well recognized rule of law in the courts of many of the States, as well as in the Federal courts, that a municipal corporation is not an insurer against accidents upon its streets and sidewalks; nor is every defect therein, though it may cause
Conceding for the sake of the argument that there is a conflict in the evidence, and, therefore, it has to be taken as true that the hose pipe in question here was lying in the street two or three feet from the curbstone, and that there was no lighted lantern there to disclose its presence, was this hose pipe an unlawful or an unreasonable obstruction in the street? It was unquestionably being used by the city in the performance of a public duty in cleansing one of its sewers which had become clogged, and thus protecting the health and welfare of its citizens. This sewer was being cleansed in not only the usual way, but in the only way in which it could be properly done, and unquestionably the city had the right to put the pipe there for the purpose of cleaning the sewer in the manner in which it wTas being done, and for that purpose to allow it to remain there as long as the necessity existed, using only such precaution against injury to persons using the street as ordinary prudence would dictate under the circumstances. When this hose pipe, three and one-half inches in diameter, was from necessity left in the street for the night, not only was it under an arc electric light which burned all night, but the hose was filled with running water,
It is to be borne in mind that it is as much the duty of a municipal corporation to take due and proper precautions for the health and welfare of its citizens as it is to keep its streets and all parts of them in reasonably safe condition for public travel, and the principles of law fixing the liability or non-liability of the city in damages, where an injury on the street is sued for, and where the suit is for neglect of duty in the protection of health and general welfare, are the same and apply alike in both cases.
In the case of Elam v. Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512, the opinion says: “Without passing upon the correctness of the rulings of the trial court in respect to the evidence offered and rejected, we will proceed to consider the qustion whether or not placing the stones in the street and permitting them to remain there for the time mentioned was an actionable nuisance. It is elementary doctrine that cities and towns must keep their streets, and all parts of them, in reasonably safe condition for public travel; but' streets can only be kept in reasonably safe condition for public travel by improving and repairing them. And, if it becomes necessary to improve and repair streets, the municipal authorities must of necessity have the right to put in the streets the material needed to improve
“There is quite a difference between the liability of a city for placing or permitting to remain in its streets material or objects not necessary for the use of the city in the construction or improvement of its streets and its liability for occupying its streets with material that is needed for construction or repair. In the first mentioned state of the case the city would not be keeping its streets reasonably safe for public travel if by its negligence it permitted them to become encumbered with articles or objects calculated to frighten horses of ordinary gentleness; whereas, in the other instances, no liability would attach if proper care was taken in the location of the usual material.”
An extended note to that case, in 20 L. R. A. (N. S.) 572 after a review of very many of the decided cases with respect to the liability of municipal corporations for defects or obstructions in streets, gives the writer’s conclusions from them as follows: “Nor is the temporary obstruction of a street for the purposes of improvement thereof unlawful, when a reasonable necessity exists therefor; and municipal corporations are not answerable in damages for permitting it. But the duty of a municipal corporation to improve
The case of District of Columbia v. Moulton, 182 U. S. 576, 45 L. ed, 1237, 21 Sup. Ct. 840, is instructive as to when an obstruction left in a street is lawful or reasonable and when unlawful or unreasonable. In that case a steam roller which had been used in repairing the street was left close to the south curb of Park street, from twenty to thirty feet west of Pine street, and over the roller was placed a canvas cover. The plaintiff was injured as the result of his horse taking fright at the roller, and brought his suit to recover damages therefor. The trial court ruled that the facts did not present a case of negligence and directed a verdict for the defendant. In the opinion of the Supreme Court by Mr. Justice White' (now chief justice) affirming the judgment of the trial court, it is said: “The steam roller in question had been brought to the place where the accident occurred for a lawful purpose, viz., that of performing a duty enjoined upon the district to keep in repair the streets subject to its control. The use of an appliance such as a steam roller was a necessary means to a lawful end — a means essential to the performance of a duty imposed by law. It must therefore follow that if in the legitimate and proper use of such machine, with reasonable notice to the public of such use, an injury is occasioned to one of the public,
“We shall assume that the period when the steam roller became serviceable while in use on Park street was the forenoon of the day prior to the accident, as claimed by the plaintiff. The right, however, to use a steam roller upon a public street for the purpose of the repair of such street we think necessarily includes the right to retain the roller upon the street until a reasonable time after the necessity for the use of the machine has terminated, in •the meantime exercising due care in the deposit of the machine when not in use, and giving due notice and warning to the public of the presence of such machine- if travel on the street is permitted. We can perceive no difference in principle between using and keeping a steam roller on the streets until the completion of a particular work, and the maintaining of a lawful excavation, such as for the construction of a sewer, or of an underground road, and the use of an engine, derrick, etc., in connection with the hoisting of earth from an excavation. The appliances used in connection with such excavations, even though calculated to frighten horses of ordinary gentleness not familiar with such objects, undoubtedly may be retained at the place where needed until the necessity therefor has ceased.”
In the case here there is no conflict in the testimony given by plaintiff in error’s witnesses, to the effect that the hose
J. W. Wood, the street inspector, with an experience of twenty-odd years in that position, and C. E. Porter, the policeman on the beat where and when the accident occurred, both testify that the hose pipe was placed and left right up against the curb of the sidewalk, instead of two or three feet away; while defendant in error and her witnesses only saw the pipe after the accident, and in effect say nothing more with respect to the lighted lantern in question than that they did not see it; therefore, their testimony is simply negative in its nature.
Barrow, one of the city’s street hands, testified positively that he had put the lighted lantern on the curbstone just south of the crossing at sundown on the night of the accident ; that he went back there twice during the night; that it was still burning; that he took it away the following morning, and that it had not then gone out. Wood, the street inspector, states also that he saw the lighted lantern soon after supper, and that he usually ate supper at that season of the year about 5:30 o’clock.
With the evidence of Wood, Porter and Barrow before the jury and not in conflict with any evidence offered by defendant in error as to where the hose pipe was left at sunset on the evening of this accident, and what light or lights had been provided to disclose its presence, the jury, in order to find plaintiff in error guilty of actionable negligence, necessarily had to regard those city officials or ser
Even though it had to be taken as true that the hose pipe was lying in the street two or three feet from the curb of the sidewalk, and that there was no lighted lantern on the curbing at the time of the accident, it is not a necessary conclusion to be drawn from the evidence that the plaintiff in error not only left this obstruction in the street, but negligently failed to do, as a precaution against injury to travelers along the street, that which it could be reasonably required to do under the circumstances.
Practically the only excuse defendant in error gives for not seeing the hose pipe is, that it was the same color as the asphalt pavement; that the pipe did not have water flowing through it; and that it was lying flat on the street; and this is claimed by her, although all of her other witnesses, as well as those for the defense, testified that the water was flowing through the pipe; and according to the proof, with which there is no conflict, the noise of the
In either view of the case, we are of opinion that the circuit court erred in not setting aside the verdict of the jury and granting plaintiff in error a new trial; and this court will enter here the judgment the circuit court ought to have entered.
Reversed.