140 S.E. 641 (Va. 1927), City of Norfolk v. Travis

Citation140 S.E. 641, 149 Va. 523
Opinion JudgeCHRISTIAN, J.
Party NameCITY OF NORFOLK v. Julia E. TRAVIS.
AttorneyR. W. Peatross and George Read Martin, for the plaintiff in error. L. S. Parsons and Harvey E. White, for the defendant in error.
Case DateDecember 22, 1927
CourtCourt of Appeals of Virginia, Special Court of Appeals of Virginia

Page 641

140 S.E. 641 (Va. 1927)

149 Va. 523

CITY OF NORFOLK

v.

Julia E. TRAVIS.

Special Court of Appeals of Virginia.

December 22, 1927

Error to Circuit Court of City of Norfolk.

Action by Julia E. Travis against the City of Norfolk and another. Judgment for plaintiff, and defendant named brings error. Judgment set aside and rendered.

VIRGINIA REPORTS SYNOPSIS

Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Named defendant assigns error.

Reversed.

The opinion states the case.

[149 Va. 526] R. W. Peatross and George Read Martin, for the plaintiff in error.

L. S. Parsons and Harvey E. White, for the defendant in error.

OPINION

CHRISTIAN, J.

Redgate avenue is a public street of the city of Norfolk. There is a thirty-two foot roadway paved in the center, and fourteen feet on either side for sidewalks. On the south side of said roadway, immediately adjoining the curb, there is a narrow grass plot, then a paved sidewalk with a curb on the south side made of bricks - set diagonally in the ground and projecting above the sidewalk three or four inches. From this sidewalk to the property line - four feet five inches of the street was in grass, and allowed to be used as part of the abutting lots along that side of the street.

The defendant, George W. Price, owns the property fronting on the south side of Redgate avenue known as No. 509 Redgate avenue. Price constructed around his front lawn - which included the four feet five inches of the paper street - immediately adjoining the paved sidewalk - an iron pipe fence, eighteen to twenty inches high, composed of one and one-quarter gas pipes

Page 642

for corner posts driven into the ground and connected at the top by the same kind of pipe. This fence had [149 Va. 527] been erected about eighteen months prior to the accident. About three months after its erection, some boys broke the top pipe out of the T which Price repaired with a hickory stick driven into the pipe and bound with wire. One month before this accident it was broken down again and one end of the pipe had fallen upon the sidewalk, but was placed back in the yard.

One of the pipes composing the top rail of this fence became detached from the posts, and in some manner fell into the paved portion of the sidewalk on the night of October 26, 1925. Julia E. Travis, who lived in the block where 509 Redgate avenue is situated - and had lived in that immediate neighborhood for about two years - while walking on said sidewalk, stepped upon this pipe, and in trying to catch herself, fell over this pipe and upon the brick coping, and sustained the injuries complained of in this suit. On the trial the jury brought in a verdict for $1,500.00 against both defendants, George W. Price and the city of Norfolk, and the court entered judgment thereon, to which judgment the defendant city duly excepted.

" The error assigned by the defendant city is, that the court erred in overruling the motion of said defendant to set aside the verdict against it, on the ground that it was contrary to the law and the evidence and without evidence to support it, and to enter final judgment in favor of it, the said city of Norfolk, in that there was no evidence of actual notice to the city of the defects alleged in the notice of motion, and the alleged defective condition of said city street had not existed for a sufficiently reasonable length of time for the city to have had constructive notice of the same and to have remedied the said alleged defects.

" The position of the defendant in error is that the city is liable upon two grounds:

[149 Va. 528] " First, that it allowed that portion of the street set aside for pedestrians to be invaded by the structure erected by Price, which structure had been maintained in the street for at least eighteen months and had been in a defective condition for a month, and was always potentially dangerous."

The above contention is based upon the general rule that the public ways for their entire length and width should be reasonably safe for uses consistent with the reason for their establishment and existence. But this rule of law does not take from the municipalities the right and discretion to lay out, widen, narrow, close or extend, grade, pave and otherwise improve streets. The power given by the State to municipalities imposes upon them duties for the failure to perform which said municipalities are liable, but this liability does not attach to the exercise of governmental discretion such as the width, extent or paving, etc., of streets. No obligation towards the public is imposed upon a city with respect to merely platted or dedicated streets or public ways on paper unless the city does something or omits to do something, from which an invitation, expressed or implied, may be reasonably inferred or implied. The city has a right, therefore, to prepare a way of a width which in its discretion will accommodate the public in the middle of a dedicated or platted street, without assuming any duty or liability with respect to the portion of the street allowed to remain in a state of nature. Robinson v. Kansas City, 179 Mo.App. 211, 214, 166 S.W. 343; Ely v. St. Louis, 181 Mo. 723, 730, 731, 81 S.W. 168; Brennan v. Streator, 256 Ill. 468, 100 N.E. 266.

The above principle of law applies also to sidewalks and footways. The municipality must exercise reasonable [149 Va. 529] care to keep in a safe condition for passage such public ways as are opened and intended by the municipality for general use, and over which the municipality exercises or may exercise full control, for their entire width. The invitation on the part of the municipality to use such ways imposes the obligation. McQuillen on Municipal Corporations, volume 8, section 2743.

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