City of Richmond v. Courtney

• Citation: 73 Va. 792
• Parties: CITY OF RICHMOND v. COURTNEY.
• Decision Date: 19 February 1880
• Court: Supreme Court of Virginia

73 Va. 792

CITY OF RICHMOND v. COURTNEY.

Supreme Court of Appeals of Virginia.

February 19, 1880

I. In an action by C against the city of Richmond to recover damages for an injury sustained by falling on a sidewalk of one of the streets, it appeared that a small space of the pavement had been broken up, and some loose bricks lay about against one of which the plaintiff struck her foot and fell. But it appeared also that she was well informed of the condition of the pavement, and only fell from inattention--HELD:

1. Quæ re: Whether the defect in the sidewalk was such as to subject the city to liability for an injury sustained there.

2. The inattention of C having contributed to the injury she is not entitled to recover damages for it from the city.

This was a writ of error to a judgment of the circuit court of the city of Richmond, in an action on the case brought by Elizabeth Courtney against the city of Richmond, to recover damage for an injury sustained by her, by reason of a defect in one of the sidewalks of the city. There was a verdict and judgment for the plaintiff for $1,500; and the city obtained a writ of error. The case is fully stated by Judge Christian in his opinion.

Keiley, for the appellant.

Wise & Hobson, for the appellee.

CHRISTIAN J.

This is a writ of error to a judgment of the circuit court of the city of Richmond.

The suit was an action of trespass on the case, brought by the plaintiff, Elizabeth Courtney, against the city of Richmond to recover damages for injuries received by her in consequence of a fall on one of the streets of said city, produced by an alleged defect on the sidewalk caused by the negligence of the defendant. In the court below the defendant demurred to the plaintiff's evidence, and the jury found a verdict subject to the demurrer for the plaintiff, and assessed her damages at the sum of $1,500.

And thereupon the court overruled the demurrer, and entered judgment for the amount of damages assessed by the jury.

To this judgment a writ of error was awarded by one of the judges of this court.

The question we have to determine is, whether, giving full effect to all the evidence introduced by the plaintiff, and all fair and legal inferences to be deduced from the same, such a case is made out as entitles the plaintiff to recover, and fixes liability upon the defendant for injuries received by the plaintiff.

To determine this question it becomes necessary to examine minutely and in detail the evidence produced by the plaintiff.

It was proved by the plaintiff that at the time of the accident--October 12th, 1876--she lived on Leigh street, in the city of Richmond, four squares from the scene of the accident; that her niece was on her death-bed, and the attending doctor--D. Davis--gave a prescription which he said she must have immediately; that witness would not wait for niece's husband to return, but started to the drugstore herself for the medicine required; that in going she went on the side of the street opposite to that on which she fell returning; that when she came out of the drugstore she was in a hurry, and about twenty steps from the drugstore she struck her foot against a loose brick in the sidewalk, and fell; that she was stunned for awhile, and when she got up and went home she suffered much pain, but did not go after a doctor until 9 o'clock next day, when she went to Dr. James' office, who set her arm; that the gas was lit in the street lamps at the corner of the street, some twenty paces off, but the light was behind her; it was getting dusky at the time, and she could hardly see at all; that she knew of the broken place in the sidewalk, but was in such a hurry and such trouble about her niece's health that she did not think of it; the pavement was broken up, and she fell right in among the loose bricks; that some five years ago she had an attack of neuralgia, which resulted in her partial blindness, but she was cured of that; that she is in her sixty-fifth year; and upon being asked by her counsel to tell the time of day on a clock about twenty-six feet distant, about a foot across the face, could not tell it; and on being asked the color of an inkstand about twelve feet distant, testified that it was blue--which it was; that at the time of the accident, and ever since the marriage of her niece, shortly after the war, she had lived with her, waiting in the house; that she had lived since before the war in the neighborhood, and had been dealing with Mr. Saunders, where she went for the medicine, ever since he started business at that place--a year or more before the accident; that she has no use of her left arm--the broken one--and has to give up sewing, and cannot work; that she is now living with another niece; that she was not in the habit of going out a night--never liked to travel after dark, even when she was a girl; that she used to work in a factory, but since the war only waited on her niece; that she had passed over the broken place once or twice on other occasions without stumbling.

The plaintiff exhibited her arm to the jury, which had the appearance of stiffness and a large knot at the point of fracture.

And the plaintiff showed to the jury, by Dr. M. L. James, another witness, that the plaintiff came to his office about the time specified, with a fracture of the two bones--the radius and ulna--of her left lower arm, near the wrist joint; that the fractures were so near the wrist that it was difficult to keep the portions accurately in place by splint; that all fractures near the joint are serious; that the fracture healed slowly, as was to be expected in one of her age; that the plaintiff, being an old woman, will probably never regain the use of her arm; that her age would doubtless contribute to that result; that she was, as he believed, very poor; that he never attended her for any defect of eyesight, and was aware of none; that if there had been any serious defect he would probably have noticed it--his profession inducing him to notice such things more particularly than a layman; that in his judgment the delay in her seeking professional aid had not affected the result.

And the plaintiff showed to the jury, by another witness, Charles W. Epps, that he is, and was at the time of the accident, and for several years before, a captain of police of the city of Richmond, and that his station house is on Brooke avenue, at the corner of Marshall street, and immediately across the street from the point at which the accident happened; that his duty as to such defects was to report the same to the chief of police, and he (the chief) reported them to the city engineer; that he (witness) was acting chief of police at the time and for two weeks afterwards; that he kept no record of his reports, but is satisfied he reported this defect, as he did all cases of needed repair, to the chief; that the defect had continued, he supposed, three or four months; that it consisted of a place in the pavement 3x5 feet, or thereabouts, from which bricks had been removed, and a few bricks were lying about loose in the opening; that he was not certain he reported to anybody, but if he did, it was to the chief--certainly not to the city engineer or city contractor that the method of repairing streets was to report to the chief of police, and he would report to the city engineer, who notified the city contractor to do the work; that whenever the defect was dangerous he reported at once to the city engineer as well as the chief of police; that these defects are at all times numerous; that within the past...