85 Va. 579 | Va. | 1888
delivered the opinion of the court.
It appears from the record, that about one o’clock, on the night of November 2d, 1885, the plaintiff, C. L. McCoull, was prudently riding his horse, in company with others, along the principal street of the city of Manchester, when his horse struck a large pile of sand in the roadway, fell, broke its neck, and badly bruised the said McCoull. It was so dark at the time, that his friends and companions who, hearing his exclamation when the disaster occurred, came to his assistance, were in danger of riding over him, and had to strike several matches before they could discover him. Neither the street-lamp was lighted, nor was there any light, or barrier, or other danger signal before the pile of sand; which was thirty feet long, from thirteen to nineteen feet from the right hand curbstone, and from tliree to four feet deep.
The plaintiff instituted this action of trespass on the case, in the said corporation court of the city of Manchester, and filed his declaration setting forth the afore-mentioned facts, reciting and charging the duty and legal obligation of the city of Man-
The court certified the facts proved as already set forth. A witness, Cox, who was one of the company riding with the plaintiff at the time of the accident, testified on the trial that, but for the exclamation of the plaintiff when his horse fell and he, fearing that he would be trampled under the horses’ feet in the darkness, called out, he too, Cox, would have ridden into the sand pile, as his horse’s hoofs were on the edge when he was warned. Another witness, I. D. Matthews, who lived in Manchester, testified that, on the night next after the accident, when there was the same absence of light, two wheels of his buggy struck the said sand pile, overturning the buggy and throwing himself and his sister out.
Captain Lipscomb, a witness for the defence, testified that he was the chief of police of the city of Manchester, and ex-officio city engineer; that he knew of the pile of sand being in Hull street a week or ten day's before the killing of the plaintiff’s horse, but did not think it necessary to report it, or to take any extra precaution with regard to it; that the street lamp diagonally opposite the pile of sand had been lighted before the 2d of November until twelve o’clock at night, the city’s regulations only requiring them to burn until that hour, but after the accident of plaintiff and that of Mr. Matthews, he, of his own volition, had kept the lamp burning all night, until the completion of the work on Mr. Jones’ house. The plaintiff introduced on his part the charter and ordinances of the city of Manchester, particularly the seventh section of the act of March 20th, 1874, in reference to streets and alleys, which gives the city of Man-
It was further proven that the pile of sand was a part of the building materials used in tile construction of Mr. Jones’ house, either by himself or his contractors, and that Mr. Jones owned the lot opposite the pile of sand and abutting on the said Hull street at the point where said pile of sand was placed, and that the said Jones was at the time engaged in building a brick house on said lot, and that said sand was necessary for and used for the construction of said house; and that said pile of sand did not occupy more than half the width of the carriage-way of the said street, and did not obstruct the use of the gutter of said street. It was further proven that the width of the carriageway of said street was forty feet, and of each sidewalk sixteen feet. Upon this state of facts, as proven by the evidence ad
“Even if there is an ordinance of the city allowing a builder to put sand in the street, yet if the jury believe from the evidence that it was necessary in such case to safe traveling that there should have been a city lamp lit at the corner of Eourth and Hull streets to warn travellers of this existing danger, they, are instructed that the failure of the city to have such light at the time plaintiff passed by, is negligence. The court further charges the jury that the city was responsible and liable in damages to any individual who suffers any special damage, caused by the streets being left in an impassable condition, where, by ordinary prudence and caution, he could not foresee and avoid the injury occasioning him damage. When public streets in this city are left in an impassable or dangerous con-: dition to the traveling public, and no means or precautions are taken to warn the public of the danger, or to prevent them from running upon it, unless the person sustaining the injury has notice of the danger and suffers in consequence of his own neg-: ligence, and from the want of ordinary caution and .prudence,, the city is liable for the damage sustained.”
But the court refused to grant the aforesaid instructions, or
There is no demurrer to the declaration in the record, and it states a case clearly within the rule laid down by this court in Jones v. Old Dominion Cotton Mills, 82 Va. 140, in which Richardson, J., delivering the opinion of the court, says the declaration states “ a cause of action so that it could be understood by the party who is to answer it, by the jury who are to ascertain the truth of the allegations, and by the court who is to give judgment.” “It certainly does state and distinctly set forth when, where, in what manner, and under what circumstances, giving ample details, the plaintiff was injured by the default, neg
Upon the facts charged in the declaration, and certified by tbe court to have been proved in the cause, the instructions which were asked for by the plaintiff and refused by the court correctly expounded the law as to the legal duty of municipal corporations to keep their streets in a safe condition for the use of the public, and their liability in damages at the suit of an individual who sustains injury by reason of their neglect so to do; and the corporation court of the city of Manchester erred in refusing to give them to the jury, See Noble and Wife v. City of Richmond, 31 Gratt. 271; Sawyer v. Corse, 17 Gratt. 230; City of Richmond v. Courtney, 32 Gratt, 798; Orme and Wife v. City of Richmond, 79 Va. (4 Hansbrough) 86; Gordon v. City of Richmond, 83 Va. 436.
The instruction which was asked for by the defendant city
The corporation court erred in overruling the motion to set the verdict of the jury aside and to grant a new trial; and the judgment complained of is wholly erroneous and must be reversed and annulled, the said verdict be set aside, and the case will be remanded to the corporation court of the city of Manchester for a new trial, with directions to give the instructions in the record asked for by the plaintiff if the evidence shall be the same.
Judgment reversed.