City Of Portsmouth v. Lee

• Decision Date: 08 June 1911
• Citation: 112 Va. 419,71 S.E. 630
• Parties: CITY OF PORTSMOUTH. v. LEE.
• Court: Virginia Supreme Court

112 Va. 419

71 S.E. 630

CITY OF PORTSMOUTH.

v.LEE.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Municipal Corporations (§ 755^*)—Accident in Street—Care Required of Municipality.

A municipal corporation is not an insurer against accidents upon its streets and sidewalks; but it is bound only to use due care to see that its streets and sidewalks are reasonably cafe to persons passing on them when exercising ordinary care, and it is only liable for injuries from defects where it has negligently failed to do that which it could be reasonably required to do in the particular case.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1587-1590; Dec. Dig. § 755.*]

2. Municipal Corporations (§ 775*)—Negligence—Cleansing Sewer.

Where a sewer which was clogged was being cleansed by forcing water through it from a hose pipe, which was not only the usual way, but the only way it could properly be done, the city had the right to put the hose there for that purpose, and allow it to remain there as long as necessity required, using only such precaution against injury to persons using it as required under the circumstances.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1630; Dec. Dig. § 775.*]

3. Municipal Corporations (§ 798*)—Defects in Streets—Warning to Travelers.

Where the city found it necessary to clean out a clogged sewer by allowing water to run all night through a fire hose from a hydrant into a catch-basin at a street corner, and the hose was laid in the gutter close to the curb, and a lighted lantern placed on the curb, and there was an arc light at the corner over the catch-basin, all the necessary precautions for the safety of travelers were taken, and it was not necessary to take extra precautions, such as stationing a watchman, to warn passers of the presence of the hose.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1657, 1658; Dec. Dig. § 798.*]

4. Municipal Corporations (§ 755*)—Duty to Health and Welfare of Citizens.

It is as much the duty of a municipal corporation to take proper precautions for the health and welfare of its citizens as it is to keep its streets and all parts of them in reasonably safe condition for public travel.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1587-1590; Dec. Dig..§ 755.*]

5. Municipal Corporations (§ 791*)—Defects in Streets—Notice to City of Defect.

Where it was necessary to run water all night through a fire hose into a catch-basin, and the hose was left in the gutter close to the curb at 5:07 p. m., the interval between that time and 7:45 p. m. was not sufficient to charge the city with constructive notice that the hose was not in the gutter, but two or three feet out in the street, where a traveler fell over it.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1647-1651; Dec. Dig. § 791.*]

6. Municipal Corporations (§ 819*)—Defects in Streets—Contributory Negligence—Evidence.

In an action against a city for injuries received by falling over a fire hose left in thestreet to flush a sewer, evidence held to show that plaintiff's own negligence was the proximate cause of her injury.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 819.^2-*]

Error to Circuit Court of City of Portsmouth.

Action by Margaret Lee against the City of Portsmouth. Judgment for plaintiff, and defendant brings error. Reversed, and remanded for new trial.

Jno. W. Hopper and Frank L. Crocker, for plaintiff in error.

S. Burnell Bragg and Jeffries, Wolcott, Wolcott & Lankford, for defendant in error.

CARDWELL, J. Mrs. Margaret Lee, a married woman, brought this action against the city of Portsmouth, and recovered a verdict and judgment for $3,000 as damages for personal injuries alleged to have been caused by reason of the plaintiff's stumbling over a hose pipe lying in the street, against or close to the curbing, at the intersection of High and Green streets in said city.

The gravamen of the declaration in the case is the alleged negligence of the defendant city in placing or permitting to be placed the said hose pipe in the street. It appears that High street runs east and west, and is paved with asphalt. Green street runs north and south, and is 00 feet wide. The accident to the plaintiff is alleged to have occurred at the southeast intersection of High and Green streets. On the day of the accident, which was the 6th day of November, 1908, the street inspector and some of the street hands had been engaged in flushing out one of the sewers of the city, which had become stopped up, and in order to flush out this sewer it became necessary to attach one end of a piece of hose pipe about 3 1/2 inches in diameter and about 23 or 24 feet in length to the water hydrant located at the edge of the sidewalk on Green street, a little south of the south building line of High street, and place the other end in a catch-basin situated at the southeast intersection of the sidewalks of Green and High streets, allowing the water at full pressure to run through the hose pipe into the catch-basin, thence through the sewer. This sewer was so badly clogged that it became necessary, in order to clear it out, to let the water run through it, not only during the day, but also all of the night, and the accident here complained of occurred about 15 or 20 minutes to 8 o'clock in the evening. There was an electric light pole at the southeast intersection of the sidewalks of High and Green streets, with an arm or bracket extending from the pole about 6 feet in a northwesterly direction, and attached thereto was an arc street electric light, which light burned all of that night.

The plaintiff lived on the west side of Green street, about 2 1/2 blocks from the scene of the accident, and on the evening of the accident she left her home about 20 minutes to 8 o'clock to go to a theatrical performance about 5 blocks away, and which was to begin at a quarter to 8 o'clock. She was accompanied by her brother and a little girl. It was a cold and windy night, and she was holding her coat around her neck and was walking fast in order to get to the theater in time. She was somewhat ahead of her brother and the little girl. Her course was down the west side of Green street to High street, and thence to the east sidewalk of Green street at Its intersection with the south sidewalk of High street. There, as is alleged, she came in contact with the hose pipe, and, stumbling, struck her knee against the curbing of the sidewalk, and thereby received the injuries of which she complains.

With respect to the foregoing facts there is no conflict of evidence, and the only material facts about which there is any conflict of testimony are, first, whether the hose pipe was lying up against the curbing of the sidewalk, as testified to by the defendant's witnesses, or lying two or three feet away from it, as testified to by some of the plaintiff's witnesses; and, second, whether the city's servants put a red lantern on the curbstone on Green street, as testified to by several of the defendant's witnesses, or there was no lantern there, according to the testimony of several of plaintiff's witnesses.

The questions for our determination are: (1) Was the defect in the street complained of actionable negligence on the part of the city? and (2) if the evidence be sufficient to sustain the charge of negligence, as found by the jury, was defendant in error, plaintiff below, free from contributory negligence concurring with the negligence of the city and causing her injury?

It has been repeatedly held by this court, and is the well-recognized rule of law in the courts of many of the states, as well as in the federal courts, that a municipal corporation is not an insurer against accidents upon its streets and sidewalks; nor is every defect therein, though it may cause the injury sued for, actionable. It is bound only to use due and proper care to see that its streets and sidewalks are reasonably safe to persons passing on or along them, when exercising ordinary care and prudence to that end. It is only liable for injuries resulting from defects in its streets or sidewalks, where it has negligently failed to do that which it could be reasonably required to do under the circumstances of the particular case. City of Richmond v. Courtney, 32 Grat. 798; Same v. Mason, 109 Va. 546, 65 S. E. 8; Same v. Lambert, 111 Va. 174, 68 S. E. 276, 28 L. R. A. (N. S.) 380; Same v. Schonberger, 111 Va. 168, 68 S. E. 284, 29 L. R. A. (N. S.) 180; City of Portsmouth v. Houseman, 109 Va. 554, 65 S. E. 11.

Conceding for the sake of the argument that there is a conflict in the evidence, and, therefore, it has to be taken as true that the hose pipe in question here was lying in the street two or three feet from the curbstone, and that there was no lighted lantern there to disclose its presence, was this hose pipe an unlawful or an unreasonable obstruction in the street? It was unquestionably being used by the city in the performance of a public duty in cleansing one of its sewers, which had become clogged, and thus protecting the health and welfare of its citizens. This sewer was being cleansed in not only the usual way, but in the only way in which it could be properly done, and unquestionably the city had the right to put the pipe there for the purpose of cleaning the sewer in the manner in which it was being done, and for that purpose to allow it to remain there as long as the necessity existed, using only such precaution against injury to persons using the street as ordinary prudence would dictate under the circumstances. When this hose pipe, 3 1/2 inches in diameter, was from necessity left in the street for the night, not only was it under an arc electric light, which burned all night, but the hose was filled with running water, and the noise of the water as it poured into the catch-basin was such that no one not deaf could fail to hear it. Unless it...