City of Newport News v. Anderson

• Decision Date: 23 April 1976
• Docket Number: No. 750551,750551
• Citation: 216 Va. 791,223 S.E.2d 869
• Parties: The CITY OF NEWPORT NEWS v. Ethel ANDERSON. Record
• Court: Virginia Supreme Court

Page 869

223 S.E.2d 869

216 Va. 791

The CITY OF NEWPORT NEWS v. Ethel ANDERSON.

Record No. 750551.

Supreme Court of Virginia.

April 23, 1976.

Robert M. Roylance, Asst. City Atty., on brief, plaintiff in error.

David N. Montague, Hampton (Montague & Montague, Hampton, on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

Ethel Anderson (Mrs. Anderson or plaintiff) instituted this action against the City of Newport News (City) alleging that she was injured by the City's negligence in failing to adequately maintain its sidewalks free from hazardous defects. A jury in the trial court found in favor of Mrs. Anderson and awarded her damages of $5,000. We granted a writ of error to the trial court's final order awarding judgment on this verdict.

The crucial question here is whether there was sufficient evidence of the City's negligence to create a jury issue or, stated differently, whether the trial court should have sustained the City's motions to strike the plaintiff's evidence and enter summary judgment for the City.

Mrs. Anderson was injured while walking in a westerly direction along a sidewalk on 30th Street in Newport News on the afternoon of December 2, 1970. She fell when she caught the heel of her shoe in a hole or depression in the sidewalk. While the weather that day was overcast, the sidewalk was dry and otherwise free of defects or loose material. Mrs. Anderson was carrying only her pocketbook or handbag.

Mrs. Anderson notified the police of her accident later that afternoon. The police investigation disclosed a depression in the sidewalk on 30th Street, measuring four inches in diameter and one-half inch deep at its deepest point. The police notified the Department of Public Works, which subsequently dispatched one of its engineers to investigate. He discovered a chip or depression in the sidewalk, located at an expansion joint, which measured three inches long, four inches wide and one inch deep at the deepest point. All of the witnesses who viewed the defect stated that it did not appear to be recent, but that there was no means of accurately determining its age.

Mrs. Anderson testified that she had walked over this section of sidewalk on numerous occasions prior to her fall and had never observed the hole or depression in which she caught her heel. Plaintiff's witness, Joseph P. Walker, who resided in the next block, testified that he had traveled this section of sidewalk on many occasions for about 12 years prior to plaintiff's accident and had not theretofore observed the defect which the plaintiff pointed out to him after her fall.

A municipality is charged with the duty of maintaining its sidewalks in a safe condition, free from defects and obstructions dangerous to pedestrians exercising ordinary care. City of Richmond v. Courtney, 32 Gratt. (73 Va.), 792, 798 (1880); City of Staunton v. Kerr, 160 Va. 420, 426, 168 S.E. 326, 328 (1933); Buck v. City of Danville, 177 Va. 582, 585, 15 S.E.2d 31, 32 (1941). A municipality is not, however, an insurer against all accidents which may occur on its sidewalks. City of Richmond v. Courtney, supra, 32 Gratt. (73 Va.) at 798; City of Richmond v. Rose, 127 Va. 772, 780, 102 S.E. 561, 564 (1920); City of Roanoke v....