City Of Norfolk v. Anthony

• Decision Date: 09 September 1915
• Citation: 86 S.E. 68,117 Va. 777
• Parties: CITY OF NORFOLK. v. ANTHONY.
• Court: Virginia Supreme Court

86 S.E. 68

117 Va. 777

CITY OF NORFOLK.

v.ANTHONY.

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Error to Court of Law and Chancery of City of Norfolk.

Action by Esther Anthony against the City of Norfolk. Judgment for plaintiff, and defendant brings error. Affirmed.

George Pilcher, of Norfolk, for plaintiff in error.

S. M. Brandt, of Norfolk, for defendant in error.

CARDWELL, J. On the 14th day of January, 1913, the defendant in error (plaintiff in the court below) entered the city market, which was operated by the plaintiff in error (defendant below) for the purpose of making certain purchases therein, and upon leaving the market, passing through the western door at the southern end of the market building to the street, her foot or heel came in contact with an obstruction in the doorway, or her foot slipped on the concrete walk to the door, causing her to fall and to sustain thereby a broken hip. She thereupon instituted this action against the city to recover damages for the injury, and upon the trial of the cause the jury rendered a verdict in her favor, and awarded her damages to the amount of $5,000, which verdict the court refused to set aside, and rendered judgment for the plaintiff thereon, to which judgment this writ of error was allowed the defendant city.

During the progress of the trial there was but one exception to the rulings of the court, which is to its action overruling the motion of the defendant to set aside the verdict of the jury and order a new trial upon the ground that the verdict was contrary to law and the evidence. Therefore the sole question presented to this court for consideration is whether or not the trial court erred in its refusal to set aside the jury's verdict and grant the defendant a new trial.

Viewing the evidence certified in the record as upon a demurrer thereto by the defendant, the facts are as follows: The defendant maintains under its charter a certain market house within the corporate limits of the city, and leases, for a consideration, stalls, or stands, in said market to divers persons; that the building has a concrete floor, and at the southern end thereof, facing on Tazewell street, there are two doors, separated by a post. Along the line where the floor and doorway meet, the floor has sunken and broken away from the western doorway to such an extent that the floor, as variously estimated by the witnesses, is from about 1 5/8 inches to 2 1/2 inches lower than the doorway, at the eastern side of the western door, which is at the center post between the western and the eastern doors, and five-eighths of an inch at the western side of the western door; in other words, there is a break in the line of the doorway, extending from the western side of the door to the eastern side thereof, causing the doorway to be higher than the floor five-eighths of an inch at the western side of the door, and from 1 5/8 inches to 2 1/2 inches at the eastern side of the door—that is, the break in the line of the doorway begins at a depth of five-eighths of an inch at the western side of the western door and increases in depth so that the doorway is higher than the floor by from 1 5/8 inches to 2 1/2 Inches at the eastern side of the doorway, where it connects with the post that separates thetwo doorways and upon which the two doors are hung, so that during market hours the two doors are swung back within the market building and hooked together. Both the floor of the market building and the doorway are above the street level, and hence from the doorway there is an incline down to the street level.

On the date mentioned, at 11 o'clock a. m., the plaintiff, as she had done many times before, entered said market building, and while in the building stopped at the stand of one Breslauer, which was immediately within the building near the western end of the western door, and in leaving the building through the western doorway her foot or heel came in contact with the ridge in the doorway, or she slipped from some cause, and fell heavily on her side, and suffered an impacted fracture of the hip.

Her declaration in this action contains two counts; the gravamen of the first being that the defendant had carelessly and negligently permitted the floor of its market building immediately near the western door, on the southern side of the building, to become in a dangerous, defective, and unsafe condition, which condition had prevailed at this point for some two to three years, with the knowledge of the defendant's authorities. The second count avers that the floor of said market building, upon which the plaintiff was required to walk, on the day and year that she sustained the injuries for which she sues, was in a dangerous, dilapidated, and unsafe condition, of which condition the defendant had due notice for a period of three weeks prior to the injury of the plaintiff, in that the southern end of said market building contained refuse matter that was allowed to accumulate upon the concrete floor of the building, rendering the same slippery to walk on, where the plaintiff, while walking in and upon the floor of said building, as she had the right to do, fell, etc., by reason whereof she sustained the injuries she complains of.

After the introduction of the evidence in the case the plaintiff asked for no instructions to the jury, nor did she object to the six instructions asked by the defendant, all of which the court gave. The sixth of the instructions given is as follows:

"The court instructs the jury that a municipal corporation, owning, controlling, and letting out stalls in its market building, is liable for the management and use thereof to the same extent and in the same manner as a private person; the city is not an insurer of the safety of the premises, but is charged only with the duty of keeping the premises in a reasonably safe condition for the use of those who, while exercising reasonable care for their own safety, have a right to use the premises. The court further instructs the jury that a municipal corporation is not an insurer against accidents in its market building. It is sufficient if the floors and exits of its market building are in a reasonably safe condition. It is not expected, and is not required, that a city should keep the floors and exits of its market building at a perfectly level and even surface, nor absolutely free from refuse matter. Slight obstructions, or the accumulation of refuse matter for a brief period of time, may not be preventable, and the only duty imposed upon the defendant is that it use ordinary care to prevent the same; and if the jury believe from the evidence that the said defendant, the city of Norfolk, used ordinary care in the maintenance and use of its market house, to keep the same in a reasonably safe condition, then they shall find for the defendant."

Other of the instructions given for the defendant defined the duty imposed by law upon a person using the market building of a city, and told the jury that if they believed from the evidence that the plaintiff knew, or should have known, of the defect in the doorway of the defendant's market building, of which she complains in her declaration, and failed, at the time the accident befell her, to use care commensurate with the known unsafe and dangerous condition, they should find for the...