City Of Norfolk v. Travis

• Decision Date: 22 December 1927
• Citation: 140 S.E. 641
• Parties: CITY OF NORFOLK. v. TRAVIS.
• Court: Virginia Supreme Court

140 S.E. 641

CITY OF NORFOLK.

v.TRAVIS.

Special Court of Appeals of Virginia.

Dec.22 1927.

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?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 full control, for their entire width. The invitation on the part of the municipality to use such ways imposes the obligation. McQuillin on Municipal Corporations, vol. 8, § 2743.

The principle of law under discussion has not been passed upon directly in Virginia, but in the case of the Appalachian Power Co. v. Wilson, 142 Va. 468, 129 S. E. 277, it was necessary to the conclusion reached to approve or disapprove it. In that case the Appalachian Power Company placed a pole in the county road outside of the paved portion thereof. The question presented to the court was whether it was the duty of the municipality to keep the road outside of the paved portion reasonably safe for travelers who should travel thereon. The Supreme Court quoted with approval the rule that:

"As between any town and the county, or public authorities having supervision of public highways, and the 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, he 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 natural or artificial." Williams v. San Francisco & N. W. B. Co., 6 Cal. App. 715, 93 P. 122; Dickey v. Maine Telephone Co., 46 Me. 485.

The approval of the rule of nonliability of the county to travelers for obstructions in the unused portions of the public highways was not intended to effect the law in Virginia that counties as governmental agencies...