149 Va. 536 | Va. | 1927
delivered the opinion of the court.
This cause involves the same record and judgment, except certain exceptions taken by the defendant Price, as that of the City of Norfolk against Julia E. Travis, ante, page 523, 140 S. E. 641, the opinion in which case was delivered today; therefore it will be necessary to set out herein only such of the facts ■ proven at the trial as will aid in an intelligent discussion of the errors assigned by the defendant Price.
Redgate avenue, a dedicated public street of the city of Norfolk, sixty feet wide, had been laid out and improved throughout its southern width, in the block where the accident happened, except upon its south
Price owned No. 509 Redgate avenue, and had erected on the grass plot along the southside of the sidewalk in front of his house, a railing or fence eighteen inches high — consisting of one and one-quarter inch gas pipe driven into the ground at each end for posts with a rail of same pipe attached to the top of the posts. This railing or fence had been built about eighteen months prior to the accident and was to protect the grass upon that portion of the paper street included in his lot.
On the evening of the 26th day of October, 1925, the top rail of this railing or fence became detached in some manner from its supports, and fell across the sidewalk. About eight o’clock that evening Mrs. Travis, who was walking in a westerly direction along the sidewalk, stepped upon this pipe, fell and was painfully injured. She brought her action for damages for her injuries thus received against Price and the city of Norfolk, and recovered a joint judgment against both defendants for $1,500.00.
It developed in the progress of the trial, especially when the learned judge was called upon to instruct the jury, that there was a sharp difference of opinion among the parties as to the legal liability of the defendants for the injuxy of the plaintiff, and separate exceptions were taken, which made the severance of the case necessary in this court.
This case was tried so far as Price was concerned upon the principle of law that the erection and maintenance of the railing or fence upon the unopened part of Redgate avenue was a public nuisance, and, therefore, he was an insurer of the safety of travelers upon the ■sidewalk. This was the effect of instruction 2 given for the plaintiff. So that the questions for our consideration are, was this railing or fence a nuisance at common law, and if so, was the danger such as a reasonably prudent person would have anticipated as the natural and probable result thereof?
.The particular question presented by this record has never been decided by any court so far as we are advised, and it is certainly a case of first impression in Virginia, hence it will be necessary to state some of the rules of law in regard to highways, that proper deductions may be made therefrom. The basic rule of law on this subject, from which all others flow, is thus stated in the case of City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345: “It is well settled that public highways, whether they be in the country or in the city, belong, not partially but entirely, to the public at large, and that the supreme control over them is in the legislature.” This plenary power over the streets to a certain extent is conferred by the legislature of the .State upon the cities and towns thereof.
The cities are given the power to lay out streets of a reasonably safe width for travel, and accept and open for public use, dedicated or paper streets through
“Any part of the highway may be used by the traveler, and in such direction as may suit his convenience or taste. No private person has a right to place any obstruction which interferes with this right on any part of the highway within its exterior limits. ******* The duty of the town is to perform a positive act in the preparation and preservation of a sufficient traveled way. The duty of others is to abstain from doing any act by which any part of the highway would become more dangerous to the traveler than in a state of nature, or than in the state in which the town has left it.” Dickey v. Maine Telephone Company, 46 Me. 485.
The four feet six inches above mentioned, while part of Redgate avenue on paper, is outside of the street as laid out by the city, therefore, the erection of the railing or fence by Price thereon is not a dangerous obstruction upon the surface of the street within the meaning of the rule of law last above stated, nor could it be considered as a dangerous obstruction near to the
Upon principle the city having only an easement for a public street in Redgate avenue and the fee being in the abutting property owners, and only a portion of that easement had been accepted by the city, yet the property owner of the abutting lot, nor any other person, can do any act which renders the use of a street hazardous or less secure than it was left by the municipal authorities. Dillon on Municipal Corporations, sections 1032-1033. “The public right to the use of streets goes to the full width of the street and extends indefinitely upward and downward.” 8 Mc-Quillin on Municipal Corporations, section 2775.
Prom the facts and circumstances of the ease at bar, Price’s legal obligations and liability will have to be tested by the rules of law applicable to owners of property abutting upon the street. There are two classes of things that an adjoining owner may do at his peril in connection with the public easement — first build such things under the surface of the s dewalk or street, as areaways, hatchways, coal holes, etc., that are inherently dangerous unless properly protected by safe guards and covers; that the owner must at all times maintain in such condition as to insure the safety -of travelers upon the street — second, objects suspended over or near to the street — such as awnings, poles, cornices, window shutters, etc. — that falling onto a street or sidewalk might thereby injure a traveler.
Mrs. Travis claims that her case comes within the second class, viz, overhanging and falling objects, and pites McCrorey v. Garrett, 109 Va. 645, 64 S. E. 978, 24 L. R. A. (N. S.) 139, as authority to sustain her cosition. This ease was a suit for damages for injuries
The opinion then quotes from Congreve v. Smith, 18 N. Y. 79, where it is said: “The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it, and whoever, without special authority, materially obstructs it, or renders its use hazardous, by doing anything upon,' above or below the surface is guilty of a nuisance; and, as in all other cases of public nuisances, individuals sustaining special damage from it, without any want of due care to avoid injury, have a remedy by action against the author or person continuing the nuisance. No question of negligence can arise the act being-wrongful.”
Judge Harrison then states the conclusions of the court in the case and what was decided, as follows:
The Garrett Case was followed by the case of King, et al. v. Hartung, 123 Va. 185, 96 S. E. 202, which was an action by Hartung, an infant, fo rinjuries received while in the street from the falling of a wagon gate that opened out into the street, which had been negligently constructed on the property of the defendants by an independent contractor but under the supervision of one of the owners. There was a judgment for the plaintiff, and upon error assigned the Supreme Court reviewed and affirmed the judgment.
The declaration based the plaintiff’s right to a recovery upon the alleged breach of the duty of the defendants to keep their premises abutting on the street in such condition as not to result in injury to travelers. The case was tried upon the rule of law that the defendants were liable to plaintiff because of their negligence. Judge Kelly, in his opinion in this case, states that there is considerable' confusion and conflict in the authorities, as to whether abutting property owners are insurers of the safety of travelers against dangerous condition of their premises, or their liability for objects falling from their premises and injuring travelers on the highway, is determined by the law of negligence, and then quotes 1 Thompson on Negligence, section 1199, where the author states the general rule that
Judge Kelly, however, was of opinion, from the quotation from Wood on Nuisances in McCrorey v. Garrett, supra, especially the sentence, “or so situated with reference thereto that if they fall they may do injury to travelers,” that the Supreme Court had adopted the rule that owners or occupiers of abutting property are insurers of the safety of their premises as to passers-by on the street.
Examination of the Garrett Case will disclose that Judge Harrison was careful not to extend the rule of insurer of the absolute safety of the sidewalk beyond owners and occupiers of buildings whose structures overhang the sidewalk. Furthermore he stated in the definition of a nuisance per se or public nuisance the first essential thereto — that the thing or structure was without legislative authority, and no authority is necessary for the owner to erect buildings or other things upon his premises, provided he does not injure others. It would seem that whether the owner of premises abutting the sidewalk is an insurer of the safety of travelers from objects falling therefrom, or such owner is liable to the traveler upon the ground of negligence in maintaining his premises in a dangerous condition, is still unsettled in this State.
We have carefully considered the principles upon which the law of public nuisances as to highways is based, because, “what is a public nuisance is a question of law for the court, but the existence of facts which the court may declare sufficient to constitute a public nuisance is a question of fact for the jury.”
There is no dispute about the facts in the in
In view of this essential element of a public nuisance this railing or fence could not be declared a public nuisance as a matter of law. It was not in any sense dangerous or hazardous and similar structures are common along sidewalks in many places in cities. It might be conceded that it was an enclosure of public property that ought to be open and free, therefore, in law a purpresture, but that fact does not make it a nuisance. Furthermore the injury was not caused by the top rail falling upon Mrs. Travis, but it fell or was placed across the sidewalk — causing an unsafe street. It is analogous to a building operation by the sidewalk, where if the covering over the street for the protection of travelers from falling bricks or other things be not properly constructed or maintained, and a traveler is injured by a brick or other thing falling upon him, the contractor is liable as an insurer. But if the brick or other thing fall upon the sidewalk causing an obstruction thereof, and a traveler falls over it and is injured, the contractor would be liable if he were proven negli
It follows from the above stated principles of law, that the instruction that told the jury that Price was liable as an insurer is erroneous; and the judgment will be set aside, and the verdict of the jury annulled, and the case remanded for a new trial to be had upon the ground of negligence if the plaintiff is so advised.
Reversed and remanded.