Clarke v. City Of Richmond

• Decision Date: 17 March 1888
• Citation: 5 S.E. 369,83 Va. 355
• Court: Virginia Supreme Court
• Parties: Clarke v. City of Richmond.

5 S.E. 369

(83 Va. 355)

Clarke

v.City of Richmond.

Supreme Court of Appeals of Virginia.

March 17, 1888.

1. Negligence—Dangerous Premises—Trespassers.

Plaintiff, while walking along the top of a private coping adjoining a public sidewalk of a municipal corporation, fell therefrom into an excavation made by the city. Held, that he was a trespasser, and could not recover for the injuries sustained.

2. Infancy—Negligence—Structures Likely to Allure—Duty to Guard.

A stone coping adjacent to a public sidewalk is not an enticing structure, within the meaning of the rule which holds persons liable for damages if they neglect to erect suitable barriers around dangerous objects near the streets and sidewalks, likely to allure children to.their hurt.¹

Error to circuit court of city of Richmond.

W. W. & B. F. Crump, for plaintiff in error. C. V. Meredith, for defendant in error.

Hinton, J. This is an action of tort brought by Frank A. Clarke, an infant of tender years, who sues by his next friend, against the city of Richmond, to recover damages for injuries sustained by him in falling into an open area which if is charged the city allowed to remain without a sufficient barrier. There was a demurrer to the declaration, and each count thereof, which being overruled, the parties went to trial, when the jury found a verdict for the defendant. The plaintiff now complains that the court erred to his prejudice in refusing to give certain instructions asked for by him, and in giving the instruction which it gave.

The bill of exceptions, and there is only one in the case, does not contain all the evidence given at the trial, but enough of it to exhibit in the estimation of the plaintiff the relevancy of the instructions asked for by him to the facts of the case, yet meager as this statement of the evidence is it is sufficiently full to disclose the fact that the plaintiff can in no event be entitled to recover. Without, therefore, stopping to consider the action of the court in the matter of the instructions, and assuming, for the purposes of the argument, that the gravamen of the plaintiff's complaint has been fully established, I shall proceed to state, as briefly as possible, the grounds upon which this opinion rests. It appears, from the bill of exceptions, that the city of Richmond had been engaged for several months prior to the date of the accident in elevating the grade of Fourth street between Byrd and Canal streets, and that this work was nearly completed on the 1st of October, 1883; about which time the owner of four tenement houses fronting on Fourth street, and adjoining the corner of Byrd street, determined that he would at the same time enlarge an area in front of his houses, which was then three feet wide and several feet deep. As the city wished to utilize the earth to be obtained from the new area, the digging, by agreement, was done by the city hands as apart of the work on the street. On the area thus enlarged, the owner, one Truman A. Parker, constructed along the line of this sidewalk a substantial brick wall, and surmounted the same with a granite coping. The top of the coping was at least fifteen inches, and probably over two feet, above the general level of the sidewalk. Such being the condition of the area on the morning of the accident, the plaintiff, a child six years of age, but small of stature, not being above three feet high at most, who had been sent on an errand, came up thissidewalk, using the walkway until near the end of the square, when of his own motion he got on top of the wall, and, while standing or walking thereon, fell into the area, thereby sustaining the injuries for which he sues. Is there a right of recovery in such a case?

It is well settled in this state that a municipal corporation, which has by its charter the power to lay out, improve, light, and keep its streets in order, is liable in damages to any person who may sustain injuries by reason of the neglect of such corporation to keep its streets in a proper and safe condition. In such cases the duty of the corporation to repair, and its liability for injuries caused by defective streets, is deduced from the special and exclusive powers conferred upon the corporation with respect to its streets, and from the means which, by taxation and local assessments, the law places at its disposal to enable it to discharge this duty. Noble v. City of Richmond, 31 Grat. 275; 2 Dill. Mun. Corp. § 789. And it is equally well settled that where the corporation permits an excavation to remain unfenced or without proper guards, in such close proximity to the highway as that one rightfully using it may, without any fault on his part, but as the result of an unintentional deviation or an accidental misstep, sustain injury by falling into such excavation, such corporation or city will be also liable. Coupland v. Harding-ham, 3 Camp. 398; Jarvis v. Dean, 11 Moore, 354; Barnes v. Ward, 67 E. C. L. 400; Zettler v. City of Atlanta, 66 Ga. 195; Bassett v. City of St. Joseph, 53 Mo. 299. But in these cases, in order to render the corporation liable for injuries occasioned by such...