City of Norfolk v. Travis

• Decision Date: 22 December 1927
• Citation: 149 Va. 523
• Court: Virginia Supreme Court
• Parties: CITY OF NORFOLK v. JULIA E. TRAVIS.

Page 523

149 Va. 523

CITY OF NORFOLK v. JULIA E. TRAVIS.

Supreme Court of Virginia, Richmond.

December 22, 1927.

1. STREETS AND HIGHWAYS — Duty of Authorities — Safety of Entire Length and Width of Street or Highway. — Public ways for their entire length and width should be reasonably safe for uses consistent with the reason for their establishment and existence.

2. STREETS AND HIGHWAYS — Duty of Municipality — Safety of Entire Length and Width of Street — Governmental Discretion as to Width, Extent or Paving. — The rule of law that public ways for their entire length and width should be reasonably safe 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 they are liable, but this liability does not attach to the exercise of governmental discretion such as the width, extent or paving, etc., of streets.

3. STREETS AND HIGHWAYS — Duty of City — Street Merely Dedicated or Platted — Sidewalks. — 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, and the same principle of law applies to sidewalks and footways.

4. STREETS AND HIGHWAYS — Safety — Duty of Municipality — Ways Intended for General Use. — The municipality must exercise reasonable 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 exercised or may exercise full control, for their entire width. The invitation on the part of the municipality to use such ways imposes the obligation.

5. STREETS AND HIGHWAYS — Obstructions — Rule as between Public Authorities and Traveler and Rule as between Traveler and Others. — As between a town, county or public authorities having supervision of public highways and a traveler, the latter will leave the portion of the road laid out and prepared for customary use and travel, and go upon and use the unprepared and customarily unused part at his own risk; but the traveler is nevertheless entitled to the unobstructed and uninterrupted use of the entire width of the highway as against the unlawful acts of other persons, either real or artificial.

6. STREETS AND HIGHWAYS — Counties — Liability of County. — In Virginia counties as governmental agencies are not liable for personal injuries caused by defects in the public roads.

7. STREETS AND HIGHWAYS — Use of Entire Street — Grass Plots and Tree Plots. — Where adequate provision for travel by pedestrians and by vehicles has been made for travelers by a municipality, and between those ways, the remaining surface is left for grass or tree plots, these plots may be protected and guarded against unnecessary use by travelers, by appropriate or suitable guards set on or within the side of such plots. These guards should reasonably conform to the purpose intended, and be placed with a due regard to the safety of travelers on the walk ways and on the street between the curbs.

8. STREETS AND HIGHWAYS — Use of Entire Street — Grass Plots and Tree Plots. — A traveler has not the right to assume that grass plots and tree plots outside the sidewalks are reasonably safe for travel, and if he leaves the sidewalk and goes thereon he may be guilty of contributory negligence that bars his recovery.

9. STREETS AND HIGHWAYS — Grass Plots and Tree Plots — Liability of City — Case at Bar. — In the instant case it appeared that a city opened an avenue, leaving four feet and a half of the platted street between the sidewalk and the abutting property owners unaccepted or unappropriated as part of the yards of the abutting property. The city assumed no obligation toward the public with respect to that four feet six inches, which appeared to users of the street to be part of the abutting lots, and was notice to the public that it was no part of the street.

Held: That the city could allow without liability the owners of the adjoining lots to make use of the grass plot in the same manner as if they had owned in fee to the edge of the sidewalk.

10. STREETS AND HIGHWAYS — Judicial Notice — Erection of Fences by Abutting Owners — Liability of City. — It is a matter of common knowledge that the owners of lots abutting public sidewalks erect and maintain fences and copings along the same, and that no obligation is imposed upon the cities thereby to remove or inspect same unless such structures are openly dangerous.

11. STREETS AND HIGHWAYS — Injuries to Pedestrians — Proximate Cause — Pedestrian Stumbling Upon Fallen Rail of Fence Erected by Abutting Owner — Case at Bar. — The instant case was an action by a pedestrian for injuries sustained when she tripped and fell over a pipe on a sidewalk. This pipe had constituted the top rail of a fence erected by an abutting owner in front of his property immediately adjoining the paved sidewalk. From the sidewalk to the property line four feet five inches of the paper street was in grass and allowed to be used as part of the abutting lots. Even if it were conceded that the city should not have permitted the fence, which was within the paper portion of the street, the city was not liable, because as an obstruction of the public way it was not the proximate cause of plaintiff's injury as she did not walk into the fence, but stumbled on the top rail which had fallen on the sidewalk, and there was no evidence that the city had notice, either actual or constructive, that the rail had fallen on the sidewalk or that on two previous occasions the rail had fallen down.

12. STREETS AND HIGHWAYS — Action by Pedestrian — Fence Erected by Abutting Owner — Notice — Case at Bar. — The instant case was an action against a city by a pedestrian for injuries sustained when she fell on a sidewalk of the city. The defect complained of by plaintiff was the falling of a pipe from an adjacent fence across the sidewalk; how or when the pipe got on the sidewalk or how long it had been suffered to remain there, the evidence did not disclose. To meet this lack of proof, plaintiff claimed that the city was negligent in allowing the fence in its condition where it was, because it was potentially dangerous.

Held: That there was no merit in this contention of plaintiff.

13. NEGLIGENCE — Potential Danger — Presumption of Negligence — Res Ipsa Loquitur — Municipal Corporations. — Cities may be held liable for structures erected by others, such as bill-boards by the side of a street and falling on pedestrians, but there is no liability in the absence of notice to the city that the structure was dangerous and not potentially dangerous. The doctrine of res ipsa loquitur is not applicable to municipal corporations.

14. STREETS AND HIGHWAYS — Liability of City — Pedestrian Injured in Stumbling over Rail of Fence on Sidewalk — Notice. — Case at Bar. — The instant case was an action by a pedestrian against a city for injuries sustained when she stumbled over the top rail of a fence which had fallen on the sidewalk. The city was not liable for permitting the fence to be erected near the sidewalk in that part of the street left in a state of nature. There was no evidence of notice, actual or constructive, to the city that the fence was dangerous, or proof that the pipe had remained across the sidewalk such length of time as to amount to constructive notice that the sidewalk was unsafe.

Held: That there was no proof of negligence upon which the jury could base a verdict for plaintiff.

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.

The opinion states the case.

R. W. Peatross and George Read Martin, for the plaintiff in error.

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

CHRISTIAN, J., delivered the opinion of the court.

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 for corner posts driven into the ground and connected at the top by the same kind of pipe. This fence had 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...