109 Va. 313 | Va. | 1909
delivered the opinion of the court.
The gravamen of the declaration filed in this case by the father and next friend of Harry L. Poore, an infant between twelve and thirteen years of age, is that, by reason of the negligence of the city of Richmond in failing “to use due and proper care and caution to place and erect sufficient barriers around or on the sides” of “the deep and narrow ditch or excavation which had been dug across the sidewalk on the north side of Grace street, between Seventh and Eighth streets, for the purpose of placing a sewer therein,” and “to place a sufficient number of lights at night near the said ditch or excavation, so as to give warning to persons of the ditch or excavation, and to prevent persons, and the plaintiff in particular, falling into the deep and narrow ditch dug as aforesaid at the place aforesaid,” the plaintiff at or about 6:15 o’clock P. M. on the evening of the 20th day of December, 1906, in the exercise of ordinary care and caution, fell into said ditch or excavation and sustained the injuries for which damages in this action are demanded. The action was against the city of Richmond and the Murphy’s Hotel, Inc., becaxise the sewer connection which the city was intending to make was between the property, of the hotel company and the sewer of the city, long before laid and in use on the north line of Grace street; but the issue was made up and tried as between the plaintiff and the defendant city.
On the first trial of the issue thus presented, a verdict was rendered in favor of the defendants, and the court promptly overruled a motion to set aside the verdict and entered judgment thereon; but at a later day in the term the plaintiff moved the court to set aside the judgment entered as aforesaid, and to sustain the motion presented a petition setting forth the grounds upon which the motion was based, viz., misdirection of the jury, and after-discovered evidence. Ten days later in the term the court granted the motion to set aside said judgment, and granted leave to the plaintiff to renew his motion to set aside the verdict of the jury, which motion was made and granted five months after the trial and judgment therein, and a new trial awarded.
At the second trial there was a verdict and judgment for-the plaintiff against the defendant city for damages to the amount of $3,000, and to that judgment this writ of error was awarded.
The first, and, in our view of the case, the only question for our consideration is the propriety of the court’s action in setting aside the judgment and verdict rendered at the first trial.
It appears that on the day mentioned the plaintiff, who was a messenger boy, was sent by his employer to deliver some shoes that had been repaired; that he left the store, which was situated on Main street between Seventh and Eighth streets, about midway of the block, about six o’clock in the evening with the package, which was to be delivered to a party on Earth Eighth street; that instead of going up Eighth street he went up Seventh from Main to Grace street, two blocks, and then crossed over to the north side of Grace and walked east on Grace street towards Eighth street; that on that day and for two or three days preceding the city had been making a sewer con
He, besides the testimony of physicians as to his injuxfies, introduced four witnesses, one of whom, Joe Adams (colored), testified that there were two lanterns at the place of the accident; that on the east side he found one light on the board, which rested on barrels, he thought, one being next to the hotel and the other next to the curb stone; that there was a “very bright light” on barrels “out in the street, down in the gutter like,” and that there was a barricade on the east side. Another of these witnesses, Caldwell, could only say, “I don’t recollect seeing any lights where the hole was”; but then said there was a bank of sand or dirt out in the street, and a light on the bank of sand. The third witness, John H. Tabb, about the fix’st person to get to the trench after the plaintiff had fallen into it, testified that there were two lights there, and that he “crawled under a plank to get to the trench, and he found there a board
There is a sharp conflict in the statement of this witness and that of Adams (colored), the latter testifying in substance, that the only barricade he saw consisted of a board resting on barrels, one being next to the hotel and the other next to the curb stone; while the foreman (Tabb), denying that there was any light (as testified to by Adams) on the barricade which guarded the trench on the east and south side, says that the barricading plank on the east side (the side on which he approached the trench) was so securely fastened to the stanchions at each end (one of which was next to the hotel and the other next to the curb stone) that it bore his weight when he attempted to let himself down into tibie trench, and that he found it necessary to get under it, and did go under it, in order to enter the trench, the board being about two and one-half feet from the top of the trench. This witness, on cross-examination, stated emphatically that there was a like barricade on the west side of the trench, and that one coming down from the west side, as plaintiff stated he was going, would come in contact with the barricade before reaching the trench, and that in order to get into the trench it would be necessary for a person to get under the barricade; but on re-examination the witness modified his first statement to the extent that he could not say positively that he saw anything on the west side; and on cross-examination said about his first statement, “I made a mistake,” meaning doubtless that he could not say positively as to whether there was a barricade on the west side of the trench or not, for the reason that when his whole statement is read he had no occasion or opportunity to ascertain definitely as to what were the obstructions to the approach to the trench from the west, as he approached it from the east and directed his efforts to extricating the plaintiff from that side.
The remaining witness, other than the physician, Joseph Dabney, did not get to the scene until the plaintiff had been
On the other hand, the evidence for the defendant city tended 1o prove that there was an electric light at the corner of Eighth and Grace streets; that permanent barricades wei*e erected directly the work was started on both the east and west sides, of the trench opened; that they were in place all the time and-never taken down until the work was finished; that they were' between four and five feet high, and consisted, on each side of the trench, of upright posts, one at the curbing and one at the building line; that on the east side two hoards were nailed, and one placed diagonally, one end on the ground and the other up; that on the west side there were three hoards nailed, and one across the center with a lantern tied on it, and that the western barricade was at least five feet from the ditch, and the eastern one at least three feet from it. It further tended to prove that the opening—the trench—on the south side had been protected by the hank of dirt, “twenty-five or thirty loads, away up high, and then a hoard nailed across on top of that.”
The foregoing facts on behalf of the city are testified to hv the foreman, and the seven members of the gang engaged in the work of laying the sewer connection between- the hotel property and Grace street, from its beginning np to the time of the accident to the plaintiff, and until the completion of the work, each of them testifying that they quit work about half-past five on the evening of the accident, and left the trench
These witnesses were corroborated by the assistant city engineer, Bolton, who says that next morning, before the men went to work, he visited the place, and found exactly the barricades and lights the men say they left there the night before. Another witness, J. T. Disney, an official of the hotel company, testified Ihat he went to the trench after the accident and saw a barricade “across the sidewalk and a lighted lamp on top of the boards across it”—i. e,., he saw barricades at both the eastern and western sides, and describes them, as did the other witnesses for the defense, when he states that he saw “also this barricade and lamp about 6 o’clock”; “1 saw it between half-past five and six o’clock. I saw the men fixing it up.” John Murphy, Jr., another official of the hotel company (the injured plaintiff having been carried into Murphy’s hotel after the accident), says, on cross-examination: “I -went down to investigate and found planks on both sides (of the trench), and on this side there was a light, two planks cris-crossed on either side”; and that upon his return to the hotel the witness asked the plaintiff how he came to fall in the trench, and that plaintiff replied: “I was coming down the street, and a plank was in my way, and I dodged under it and fell into the hole.”
The evidence is clear that the men quit work at the trench about 5:30 P. M., and that the accident occurred about 6:15 P. M.
Upon the evidence related having gone to the jury, the court gave the following instruction, which it is claimed was a misdirection as to the law applicable to the facts which the evidence tended to prove, to-wit:
“A municipal corporation is not an insurer against accidents upon its streets and sidewalks, nor is every defect therein, though it may cause injury, actionable. It is sufficient if the*320 streets are in a reasonably safe condition for travel in the ordinary inodes, by night as well as by day; and if the surface of a street or sidewalk is not in a reasonably safe condition, and the city has caused such defect by the doing of necessary work therein, it becomes the duty of the city to place suitable barriers to guard against an accident by persons falling into such excavation, and in a reasonable way to display lights to warn persons using the streets of such defect; and if the jury believe from the evidence in this case that on the evening of the accident, and before it happened, the city of Richmond closed and guarded the defect in the street made by it by reasonably suitable barriers, and placed a reasonable number of lighted lamps, and that the same were suitably located in order to prevent the happening of the accident, the city of Richmond cannot be held responsible for the injury to the plaintiff, even though the lamps were afterwards extinguished, and had been removed from their positions at the time when the accident happened, unless it appears from the evidence that the city of Richmond, through its officers and agents, knew, or ought to have known by the exercise of ordinary care, of such removal and extinguishment in time to replace or relight the said lamps before the accident happened.”
It is not claimed that the instruction does not correctly state the law, but the effort is made to apply the well settled principle, that “it is error to give an instruction where there is no evidence tending to support it,” to the words of the instruction, “even though the lamps were afterwards extinguished, and had been removed from their positions at the time when the accident happened, unless it appears from the evidence that the city of Richmond, through its officers and agents, knew, or ought to have known by the exercise of ordinary care, of such removal and extinguishment in time to replace or relight the said lamps before the accident happened.”
It would, as it seems to us, be a quite strained view of the evidence for one to assert that it did not tend to prove the facts
Oounsel for the plaintiff says in his brief that while the evidence for the plaintiff, at the first trial, showed negligence on the part of the defendant city, the only conclusion from the evidence of the defendant, on the other hand, that could be drawn is that the trench was properly guarded and lighted at the time
The after-discovered evidence relied on as justifying the setting aside of the verdict of the jury for the defendants at the first trial is set forth in the affidavit of one Eathaniel Moody (colored), and when analyzed the affidavit is found to consist of four parts. The first states that affiant saw plaintiff coming down Grace street toward Eighth and not seeing him “come out at Eighth,” and of finding the plaintiff in the trench, etc. This is merely cumulative of the plaintiff’s own story, which is uncontradicted in these particulars. The second part of the affi
The other affidavit offered in support of the motion to set aside the judgment and verdict at the first trial is that of counsel for the plaintiff, in the usual form, and to the effect that counsel knew nothing of what ISTathaniel Woody would testify to until after the first trial, etc., and serves only to needlessly acquit counsel of neglect of duty to exercise diligence in preparing his client’s case for trial.
Our own authorities for the rule with respect to motions for a new trial on the ground of newly discovered evidence are cited in the recent case of Taliaferro v. Shepherd, 107 Va. 56, 1 Va. App. 293, 57 S. E. 385, and need not be again cited here.
We are of opinion that the circuit court erred in setting aside
Reversed.