127 Va. 772 | Va. | 1920
Lead Opinion
after making the foregoing statement, delivered the following opinion of the court:
The controversy in the case in judgment is not one of law, but of fact.
The law applicable to cases of this character is well settled.
There are two issues involved, (1) whether the municipality was primarily liable, and,if so, (2) whether there was contributory negligence on the part of the plaintiff which barred her right of recovery.
That the above is the substantive law on the subjects mentioned all the authorities agree. Among them are the following, which are cited in argument before us. 4 Dillon on Mun. Corp. (5th ed.), sections 1697, 1711; 28 Cyc. 1358-1361, 1366-7, 1396; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471; Osborne v. Pulaski, etc., Co., 95 Va. 17, 27 S. E.
It is a concessum in the case in judgment that the defective condition of the sidewalk had existed' for an amply sufficient time before the accident to have given the city actual or constructive notice of such condition, and it took no steps to remedy that condition. And the city took the position on the trial, as one of its defenses, that the actual condition of the sidewalk did not present a case of an actionable defect.
1. The first question for our decision, therefore, is whether, but for the demurrer to evidence, there was sufficient evidence before the jury to have warranted them in finding that the unevenness in the sidewalk, which is described in the statement preceding this opinion, was an actionable defect, in that it was a condition which the city, in the exercise of reasonable forethought, ought to have anticipated would render the sidewalk unreasonably unsafe for travel in the ordinary modes by persons exercising reasonable or oridnary care on their part under the circumstances to avoid accident?
And, indeed, in the last named decision the court did not consider that it was even a case in which it could say, as a matter of law, that the plaintiff had been guilty of such contributory negligence as barred recovery.
Judge Christian in his opinion does take the position that, as a matter of law, the city was not guilty of negligence with respect to the defect in the pavement—i. e., that the defect was not actionable—and in that connection says: “Slight obstructions, produced by loose bricks in the pavement, or by the roots of trees which may displace the pavement, from the nature of things, cannot be prevented.” But that was not the majority holding. Only one other judge (Judge Moncure), concurred in Judge Christian’s opinion. Judge Staples said “he was not prepared to concur in so much of the opinion of Judge Christian as declares that the city of Richmond is not guilty of negligence with respect to the defect in the pavement.” Judge E. C. Burks concurred in the view of Judge Staples. The case was decided in favor of the city, however, on the ground of the contributory negligence of the plaintiff, of which we shall have more to say below; and Judge Anderson concurred in the judgment to that effect.
Similarly in Redford v. City of Woburn, 176 Mass. 520, 57 N. E. 1008, it is held, as stated in the opinion, that, “* we do not think it could be ruled a,s a matter of law that the jury were not warranted in finding that a shut-off box in the middle of a sidewalk much used for foot travel, projecting on one side an inch and a quarter above the surrounding gravel, did not constitute a defect. Whether suelf an object was liable to cause travelers, while in the exercise of due care, to stumble and fall, or to turn or sprain the ankle, as we infer the plaintiff did, and whether the de
And in Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416, it is held, as stated in the opinion of the court, that—
“While it is true, as stated, that a municipal corporation is not an insurer against accidents on its streets and highways, yet it is charged with the exercise of due and reasonable care in keeping and maintaining its streets so as to prevent injury to persons traveling over them. In this case two water plugs, one projecting 2% inches, and the other 1% inches, above the sidewalk, and near the center thereof, seem to be a very dangerous contrivance to be permitted to exist at a point where persons have the lawful right to go, and where pedestrians are daily traveling. In using the sidewalks of a city, a pedestrian has the right to presume that they are kept in a reasonably safe condition for travel.
“In this case, suppose such a person as could be charged with contributory negligence should be passing over the sidewalk of the defendant a.t the point where the accident occurred, and not knowing of the existing defect, and should stumble over it and be injured by reason thereof, the city would be liable, unless contributory negligence could be charged against him * * *. ”
Among the cases cited for the city, in which the defect in the way was held as a matter of law not to be actionable, are the following, which approach nearest in their facts to the case in judgment: Weisse v. Detroit, 105 Mich. 482, 63 N. W. 423; Hamilton v. Buffalo, 173 N. Y. 72; 65 N. E. 944; Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401.
In Hamilton v. Buffalo, the defect was different from that in thé case in judgment, being a depression. Moreover, the plaintiff walked over it four or five times a, day, was familiar . with it, had often noticed it before the accident, and the plaintiff himself testified that he had not considered it at all dangerous. And the court said in its opinion—“evidently it did not occur to him that it was dangerous or that accidents were reasonably to be anticipated by its existence.” Hence it was held that no such duty of anticipation rested upon the city.
In Boltz. v. Yonkers, also, the defect was a depression, 2^2 inches deep, and 7% x 26 inches in surface area, caused by the removal of broken parts of the flag-stone paving of a sidewalk from about the center of the way. - The sidewalk was eight feet wide, leaving ample space on each side of the depression for passage free' of any defect. And as affirmatively appeared in evidence, the walkway had been, used by the public in that condition- “for years,” and that “no accident had resulted from such use before,”
On principle, therefore, and. upon authority we are of opinion that there was sufficient evidence in the case in judgment to have supported a verdict of the jury, had not the demurrer been interposed, holding, -in effect, in accord with the opinions of Judges Staples and E. C. Burks, in Richmond v. Courtney, that the defect in the sidewalk in the case in judgment was actionable.
We come now to the only question remaining for our decision in this case, and that is this:
As said in 4 Dillon on Mun. Corp., sec. 1719, on the subject of contributory negligence in cases such as that we have under consideration: “* * Although the facts are not controverted, yet, if different minds may reasonably draw therefrom different conclusions, the question is for the jury as one of fact, and not for the court as one of law. This statement of the law is substantially taken from the judgment of the Supreme Court of the United States, and in the author’s opinion it gives the true rule on the subject.” Citing Sioux, etc., R. Co. v. Stout, 17 Wall. (U. S.) 657, 21 L. Ed. 745.
As said in Bashford v. Rosenbaum, 120 Va. 1, at p. 8, 90 S. E. 625, at p. 628: “The jury’s verdict was for the plaintiff, under instructions * * which submitted both the questions of the defendant’s negligence and that of the plaintiff’s contributory negligence to them, and after a view o by the jury of the premises, allowed by the court; therefore to disturb this finding it was necessary for the trial court to have taken the view that there could be ho difference of opinion amongst reasonable men as to the plaintiff’s contributory negligence.”
On the subject of contributory negligence the following of the cases cited for the city approach nearest in their facts to the case in judgment, namely: Richmond v. Schonberger, supra, 111 Va, 168, 68 S. E. 284; Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, 2 Am. St. Rep. 164; Lerner v.
The Schonberger Case involves a street crossing and is distinguishable for that reason, as above noted.
The other cases just cited all involve similar defects in the sidewalk, consisting of displacement of bricks. In the Evans and Courtney Cases the plaintiff’s fall was caused by striking a foot against a brick projecting above the level of the surface on which the plaintiff was walking; but in both of those cases the plaintiff was well acquainted with the existence of the defect prior to the time of the accident, and both decisions turn on that fact; which differentiates those cases from that in judgment. While in the Lerner Case, the plaintiff’s fall was occasioned by losing her balance and falling on stepping into a depression in the sidewalk. There the “defect in the pavement was the displacement of some bricks,” as stated in the opinion. Over how large an area does not appear from the report of the case. The opinion states that “Into the depression caused by the displacement plaintiff stepped, with the result that she fell and injured herself.” The opinion then proceeds: “In bringing her action she assumed the burden of exhibiting a case clear of contributory negligence. Having testified that she stepped into the depression without having observed it, and having shown conditions which should have been sufficient, nothing intervening, to secure one exercising ordinary care from such accidents, she would be entitled to recover only as she explained in a way consistent with ordinary care on her part, how and why she failed to see what was directly before her. Failing in this, it could not be said that her injury resulted exclusively from the defendant’s negligence. It is insisted upon by counsel Representing her that she was prevented from seeing the depression into which she stepped by the crowded condition of the pavement at the time. No
The court entered a compulsory non-suit.
On the whole, therefore, while the case is a close one on the question of contributory negligence, we are of opinion that upon the evidence in this particular case, this question Was for the jury, and that there was sufficient evidence to support the verdict of the jury, had the demurrer to evidence not. been interposed, in finding, in effect, that the plaintiff was not guilty of such negligence as barred her right of recovery. Hence we must think upon this point also, as did the learned judge of the trial court, that, on the demurrer to evidence aforesaid, the question of contributory negligence aforesaid must be considered as concluded against the city.
The judgment under review will therefore be affirmed.
Affirmed.
Dissenting Opinion
dissenting:
I am constrained to express my dissent from the con-. elusion of the majority in this case, because I think that conclusion is inconsistent with the controlling legal doctrine which is expressed in the opinion itself. That doctrine is that a city is not an insurer against accidents upon its streets, is not bound to keep its streets perfectly smooth and level, and that slight defects which are not dangerous are not actionable. The legal duty of the city is discharged when it exercises reasonable care to keep its sidewalks in a reasonably safe condition for pedestrians using them with ordinary care. In this case, inasmuch as there is no conflict in the evidence, and there was a demurrer to the evidence, the facts are established, and the question presented is a question of law arising out of those facts. In my view, an elevation of two inches on the outside and one-half an inch on the inside of a concrete pavement three feet wide, the pavement being otherwise perfectly smooth and free from defects, constitutes no actionable negligence which should sustain a recovery by this plaintiff, who stumbled and fell thereon not later than two o’clock in the day, when the sun was shining brightly, and there was nothing to obscure her view of this unevenness in the pavement. To hold otherwise, as it seems to me, is equivalent to holding that the city must exercise the very highest degree of' care, and that the pedestrian is under no duty to observe and avoid the obvious.
Rehearing
Upon a Rehearing, January 20,1921.
Upon a rehearing of this cause, the court adheres to its former decision. Judges Burks and Saunders concurring in the result, and Judge Prentis dissenting. ■
Affirmed.