Childress v. City Of Richmond

• Decision Date: 08 March 1943
• Citation: 181 Va. 267,24 S.E.2d 419
• Court: Virginia Supreme Court
• Parties: CHILDRESS. v. CITY OF RICHMOND.

24 S.E.2d 419

181 Va. 267

CHILDRESS.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

March 8, 1943.

Error from Circuit Court of City of Richmond; Julien Gunn, Judge.

Action by Daisy Mann Childress against City of Richmond for personal injuries sustained from fall on crosswalk, wherein there was a verdict for plaintiff for $1500. There was an order of the trial court setting aside the verdict, and plaintiff brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON and SPRATLEY, JJ.

William C. Parkinson and S. R. Sanders, Jr., both of Richmond, for plaintiff in error.

Horace H. Edwards and Olin A. Rogers, both of Richmond, for defendant in error.

BROWNING, Justice.

Here we have another of the oft recurring accident cases arising from city street surface inequalities of one sort or another.

In this case Mrs. Childress complains because the trial court set aside a verdict for $1500 which a jury awarded her as damages for injuries which she sustained on account of the accident which we shall now briefly describe.

On September 17, 1940, about eight o'clock in the evening, while walking along Granby Street in the city of Richmond, with her daughter and son-in-law, Mrs. Wright and Dr. Wright, she came to Floyd Avenue, and in attempting to cross it, she stepped down from the sidewalk of Granby Street to Floyd Street and in making the next step, in her progress, she stepped into a hole or depression in the latter way and was thrown down or fell on her right knee breaking the kneecap in several places. She suffered severe pain and was confined to her bed for six weeks and was put to considerable hospital and medical expense. Dr. James T. Tucker said that she sustained permanent disability to the extent of ten per cent of her normal capacity.

The hole or depression was eighteen inches from the Floyd Avenue curbing. It was a jagged and irregular broken place fifteen inches in length, eight inches in width and one and five-eighths inches in depth in the larger part of its area. Dr. Wright described it in these words: "Yes, it wasn't straight down an inch and five-eighths but it was a broken out place and at the far side you can see it is much deeper than it is at the curb side probably."

The three persons were walking abreast with Mrs. Childress on the outside when the accident happened.

The city was charged with negligence in failing to provide a reasonably safe place for pedestrians to travel and in suffering an allegedly dangerous condition to exist in its street for a period of from six months to two years and in allowing the presence of shade trees and foliage which obstructed the light rays, making the crossing dark and obscuring the defect in the walkway.

It was also charged with negligence in shading a street light, to prevent it fromshining in the windows of a corner residence, which deflected the light and kept it from illuminating the place of the defect.

We have already indicated the jury's verdict for the plaintiff and the action of the court in setting it aside. From this ruling Mrs. Childress sought and obtained a writ of error.

Counsel for the city suggest the presence of but two points for our concern.

One is does the evidence disclose a condition upon which can be predicated the city's failure to observe its duty to use reasonable care to provide and maintain its streets in a reasonably safe travelable condition for pedestrians and others?

Succinctly, was the city guilty of primary negligence?

The other, contributory negligence, we eliminate from consideration, because, we think, there is no primary negligence.

The major matter which overshadows all others is that of primary negligence as applicable to the defendant.

This court said in the case of City of Richmond v. Schonberger, 111 Va. 168, 68 S.E. 284, 285:

"In that case [City of Richmond v. Courtney, 32 Grat. 792, 798, 73 Va. 792, 798], the obstruction was upon the sidewalk. In this, the obstruction was upon the crossing of a street, which it is true may be considered, in a sense, as a part of the sidewalk. But it is only reasonable to say that one passing over a street crossing may more reasonably expect obstructions, and should, therefore, exercise a greater degree of care than when upon the sidewalk, strictly so called. To hold the city liable for every slight inequality in its streets would, we think, be altogether unreasonable.

"In Bigelow v. City of Kalamazoo, 97 Mich. 121, 56 N.W. 339, it is said: 'Even in our most prominent thoroughfares, paved in the most approved manner, curbs must be carried, and at the crossings they are from 2 to 6 inches higher than the pavement. The curb must be left bare, and inattentive people be liable to stumble, or, as is frequently done, a plank is placed upon an incline, upon which pedestrians carelessly advancing are liable to slip. In either case there is the minimum of danger. The walk is not absolutely safe, but it cannot be said that it is not in a reasonably safe condition. The same is true of nearly all of our alley crossings. Gutters are necessarily left...