City Of Norfolk v. Travis

Citation140 S.E. 641
Case DateDecember 22, 1927
CourtSupreme Court of Virginia

140 S.E. 641

CITY OF NORFOLK.
v.
TRAVIS.

Special Court of Appeals of Virginia.

Dec.22 1927.


[140 S.E. 641]

Error to Circuit Court of City of Norfolk.

Action by Julia E. Travis against the City of Norfolk and another. Judgment for plaintiff, and defendant named brings error. Judgment set aside and rendered.

See, also, Price v. Travis, 140 S. E. 644.

R. W. Peatross, of Norfolk, and George Read Martin, of New York City, for plaintiff in error.

L. S. Parsons and Harvey E. White, both of Norfolk, for defendant in error.

CHRISTIAN, J. Redgate avenue is a public street of the city of Norfolk. There is a 32-foot roadway paved in the center, and 14 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 3 or 4 inches. From this sidewalk to the property line 4 feet 5 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 Red-gate avenue known as No. 509 Redgate avenue. Price constructed around his front lawn, which included the 4 feet 5 inches of the paper street, immediately adjoining the paved sidewalk; an iron pipe fence, 18 to 20 inches high, composed of 11/4 inch gas pipe?

[140 S.E. 642]

for corner posts driven into the ground and connected at the top by the same kind of pipe. This fence had been erected about 18 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, and one end of the pipe had fallen upon the sidewalk, but was placed back in the yard.

One of the pipes composing the top rail of this fence became detached from the posts, and in some manner fell into the paved portion of the sidewalk on the night of October 26, 1925. Julia E. Travis, who lived in the block where 509 Redgate avenue is situated, and had lived in that immediate neighborhood for about two years, while walking on said sidewalk, stepped upon this pipe, and in trying to catch himself, fell over this pipe and upon the brick coping and sustained injuries complained of in this suit. On the trial the jury brought in a verdict for $1,500 against both defendants, George W. Price and the city of Norfolk, and the court entered judgment thereon, to which judgment the defendant city duly excepted.

"The error assigned by the defendant city is that the court erred in overruling the motion of said defendant to set aside the verdict against it, on the ground that it was contrary to the law and the evidence and without evidence to support it, and to enter final judgment in favor of it, the said city of Norfolk, in that there was no evidence of actual notice to the city of the defects alleged in the notice of motion, and the alleged defective condition of said city street had not existed for a sufficiently reasonable length of time for the city to have had constructive notice of the same and to have remedied the said alleged defects."

"The position of the defendant in error is that the city is liable upon two grounds:

"First, that it allowed that portion of the street set aside for pedestrians to be invaded by the structure erected by Price, which structure had been maintained in the street for at least 18 months and had been in a defective condition for a month, and was always potentially dangerous."

The above contention is based upon the general rule that the public ways for their entire length and width should be reasonably safe for uses consistent with the reason for their establishment and existence. But this rule of law 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 said municipalities are liable, but this liability does not attach to the exercise of governmental discretion such as the width, extent, or paving, etc., of streets. 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. Robinson v. Kansas City, 179 Mo. App. 211, 214, 166 S. W. 343; Ely v. St. Louis, 181 Mo. 723, 730, 731, 81 S. W. 168; Brennan v. Streator, 256 111. 468, 100 N. E. 266.

The above principle of law applies also to sidewalks and footways. 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 exercises or may exercise...

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7 practice notes
  • Anton v. St. Louis Pub. Serv. Co., No. 31850.
    • United States
    • United States State Supreme Court of Missouri
    • May 17, 1934
    ...Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54, 61 A.L.R. 242; Price v. Travis, 140 S.E. 644, 56 A.L.R. 209; City of Norfolk v. Travis, 140 S.E. 641, 56 A.L.R. 214; Oliver v. Denver, 13 Colo. App. 345, 57 Pac. 729. (c) And no matter who owned this signpost or originally erected it at said plac......
  • City of Tuscaloosa v. Fair, 6 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 13, 1936
    ...the city to remedy defects as respects the right of one walking on such space in the exercise of due care. Norfolk v. Travis, 149 Va. 523, 140 S.E. 641, 56 A.L.R. 214, note, page 220; 13 R.C.L. 381, 466; 29 Corpus Juris, 683. But this court has adopted the rule of due care by the city under......
  • City of Richmond v. Holt, Record No. 011742.
    • United States
    • Virginia Supreme Court of Virginia
    • June 7, 2002
    ...The invitation on the part of the municipality to use such ways imposes the obligation." City of Norfolk v. Travis, 149 Va. 523, 528-29, 140 S.E. 641, 642 (1927); see also Votsis v. Ward's Coffee Shop, Inc., 217 Va. 652, 654, 231 S.E.2d 236, 237 (1977); Dockery v. City of Norton, 204 Va. 75......
  • Wray v. Norfolk & W. Ry. Co., No. 3657
    • United States
    • Virginia Supreme Court of Virginia
    • September 6, 1950
    ...which the municipality exercises or may exercise full control, for their entire width. ' Norfolk v. Travis, 149 Va. 523, at pp. 528, 529, 140 S.E. 641, 56 A.L.R. The facts in Radford v. Calhoun, 165 Va. 24, 181 S.E. 345, 100 A.L.R. 1378, were that the city permitted a pile of concrete slabs......
  • Request a trial to view additional results
7 cases
  • Anton v. St. Louis Pub. Serv. Co., No. 31850.
    • United States
    • United States State Supreme Court of Missouri
    • May 17, 1934
    ...Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54, 61 A.L.R. 242; Price v. Travis, 140 S.E. 644, 56 A.L.R. 209; City of Norfolk v. Travis, 140 S.E. 641, 56 A.L.R. 214; Oliver v. Denver, 13 Colo. App. 345, 57 Pac. 729. (c) And no matter who owned this signpost or originally erected it at said plac......
  • City of Tuscaloosa v. Fair, 6 Div. 793
    • United States
    • Supreme Court of Alabama
    • February 13, 1936
    ...the city to remedy defects as respects the right of one walking on such space in the exercise of due care. Norfolk v. Travis, 149 Va. 523, 140 S.E. 641, 56 A.L.R. 214, note, page 220; 13 R.C.L. 381, 466; 29 Corpus Juris, 683. But this court has adopted the rule of due care by the city under......
  • City of Richmond v. Holt, Record No. 011742.
    • United States
    • Virginia Supreme Court of Virginia
    • June 7, 2002
    ...The invitation on the part of the municipality to use such ways imposes the obligation." City of Norfolk v. Travis, 149 Va. 523, 528-29, 140 S.E. 641, 642 (1927); see also Votsis v. Ward's Coffee Shop, Inc., 217 Va. 652, 654, 231 S.E.2d 236, 237 (1977); Dockery v. City of Norton, 204 Va. 75......
  • Wray v. Norfolk & W. Ry. Co., No. 3657
    • United States
    • Virginia Supreme Court of Virginia
    • September 6, 1950
    ...which the municipality exercises or may exercise full control, for their entire width. ' Norfolk v. Travis, 149 Va. 523, at pp. 528, 529, 140 S.E. 641, 56 A.L.R. The facts in Radford v. Calhoun, 165 Va. 24, 181 S.E. 345, 100 A.L.R. 1378, were that the city permitted a pile of concrete slabs......
  • Request a trial to view additional results

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