City Of Portsmouth v. Houseman

• Decision Date: 10 June 1909
• Court: Virginia Supreme Court
• Parties: CITY OF PORTSMOUTH . v. HOUSEMAN.

65 S.E. 11

109 Va. 554

CITY OF PORTSMOUTH .

v.HOUSEMAN.

Supreme Court of Appeals of Virginia.

June 10, 1909.

1. Municipal Corporations (§ 806^*)—Sidewalks—Duty of Pedestrian to Look fob Dangers.

A pedestrian exercising ordinary care in walking on a sidewalk is not required to anticipate danger or to be on the lookout for it, but may presume that the city has done its duty in keeping its sidewalks in order.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1678, 1682; Dec. Dig. § 806.*]

2. Municipal Corporations (§ 807*)—Sidewalks—Duty of Pedestrian to Use Safe Portion.

If there is a defective place in a sidewalk, but a sufficient space for a person to pass in safety by the exercise of ordinary care, it is his duty to take the safe route.

[Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. §§ 1679-1681; Dec. Dig. § 807.*]

3. Appeal and Error (§ 842*) — Review — Verdict Clearly Wrong.

While the jury are the triers of facts, the judges of the credibility of witnesses, and of the weight of testimony, and while the jury's finding of facts is entitled to great respect and the refusal of the trial judge to interfere with a jury finding is entitled to great weight with an appellate court, yet, where the verdict is plainly against the law as applied to the facts found, the appellate court will reverse the judgment, and direct a new trial.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. § 842.*]

4. Municipal Corporations (§ 762*) — Defective Sidewalks—Liability—Notice of Defect.

A city is not liable for an injury from a defect in a sidewalk or street unless the defect was created by the city or with its knowledge, actual or constructive, and it was negligent in not repairing it within a reasonable time after it knew or should have known thereof.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611; Dee. Dig. § 762.*]

5. Municipal Corporations (§ 821*) — Defective Sidewalk—Action for Injuries— Questions of Law and Fact—Reasonable Time to Make Repairs.

What is a reasonable time within which a municipal corporation must repair a defective sidewalk after it knows or should have known of the defect so as to escape being negligent is a mixed question of law and fact, but it is not an arbitrary right of the jury to say in an action for injuries for such a defect what is a reasonable time, though they may from the facts be warranted in finding that the defect existed, and that it caused the injury.

[Ed. Note.—For other cases, see Municipal Corporations, Cent Dig. §§ 1745-1750; Dec. Dig. § 821.*]

6. Negligence (§ 136*)—Actions—Question for Juey.

The essential feature in cases where damages may be recovered for an injury is defendant's negligence as the proximate cause of the injury, and, where there is evidence sufficient to fix actionable negligence upon defendant, wheth er it was the proximate cause of the injury becomes purely a question of fact.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 292, 297, 300, 327-332; Dec. Dig. § 136.*]

7. Municipal Corporations (§ 817*) — Defective Sidewalks — Negligence — Presumptions.

Negligence cannot be presumed from the absence of evidence, and, when constructive notice is relied upon to show negligence, facts upon which the notice may be reasonably presumed must be proved by satisfactory evidence, and hence it will not be presumed that officers of a city charged with the duty of observing and reporting defects in streets neglected their duty from the fact that a patrolman in whose beat an accident occurred from an alleged defective sidewalk was permitted by the city to leave the jurisdiction of the court without testifying in an action against the city for the injury.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. § 817.*]

8. Municipal Corporations (§ 791*) — Defective Sidewalks—Reasonable Time to Repair.

A defect in a sidewalk consisting of a cover to a catch-basin partly removed continuing from 12 o'clock noon until 9 o'clock p. m., when a person was injured thereby, had not existed long enough to impute to the city constructive knowledge thereof and negligence in not having it remedied.

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

Error to Court of Hustings of City of Portsmouth.

Personal injury action by Annie E. Houseman against the City of Portsmouth. Judgment for plaintiff, and defendant brings error. Reversed and remanded for a new trial.

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

Jeffries & Lawless and Daniel Coleman, for defendant in error.

CARDWELL, J. Defendant in error, plaintiff below, instituted this action to recover of plaintiff in error, defendant below, damages for injuries alleged to have been sustained by her as the result of the negligence of plaintiff in error in not keeping its sidewalks in a reasonably safe condition for the use of pedestrians thereon.

At the second trial of the case the jury rendered a verdict, and the court entered judgment thereon against the city for $2,500 damages; and we are asked to review and reverse that judgment on the ground that the verdict was contrary to the law and the evidence.

At the northwest corner of Columbia and Middle streets, where the alleged injuries to defendant in error were sustained, as at each of the corners at the intersection of these streets, and at other such localities in the city, the curbing of the sidewalk is in form circular, and at the bottom of the curbing is an opening as an outlet conducting the water from the street into the sewerunder the sidewalk, the water reaching the opening in the curbing through a basin, the lower edge of which is at the bottom of the opening in the curbing and the top edge about level with the street. Just inside of the curbing of the sidewalk there is what is called a catch-basin, set back about 18 or 20 inches from the point of the curbing, these catch-basins being 36x42 inches, and as a covering there is an iron lid or plate which, when in place, makes the top of the catch-basin level with the sidewalk; and this lid or plate is only removed or displaced by the employes of the city in order to clear the sewer of obstructions to the free passage of the water into and through the sewer, and to handle this lid or plate two men are required, and, when taken off, an opening is left in the top of the basin about 18x28 inches and about 9 inches deep. There were electric street lights at each corner of the intersections of other streets with Columbia and Middle streets only one square away from the intersection of Columbia and Middle streets.

This action was brought only a day or two before it would have been barred by the statute of limitations, and after the declaration was, by leave of court, twice amended, the first amendment at the April term of the court, 1905, fixing the accident to defendant in error as of October 27, 1903, instead of September 27, 1903, as originally alleged, and the second amendment fixed the point of the accident at the northwest corner of the intersection of Middle and Columbia streets, instead of at the southeast intersection of these streets, as originally alleged.

At the second trial, which did not take place until April 21, 1908, nearly five years after the alleged accident, the evidence on behalf of defendant in error as to the facts and circumstances under which she was hurt and the extent of her injury is in substance as follows:

Defendant in error, a lady about 58 years of age, had been staying in Portsmouth about four weeks, and on the night of this accident she had been attending a religious service in a hall at the intersection of South and Middle streets, and while returning home about 9 o'clock at night, walking arm in arm with another lady, she fell into a manhole on the sidewalk. In company with her at the time was the husband and the 11 year old daughter of the lady with whom she was walking, all of whom corroborate, in the main, her statement as to the manner of the happening of the accident. She states that the place was at the time dark, and this is the only contradiction of the evidence on behalf of the city—that the electric lights at the four corners of intersecting streets a square away were sufficient to light the street at the point of the accident.

We shall regard the injuries sustained by defendant in error as settled by the verdict of the jury, and will consider the only ques tion in the case for determination, viz.: If the facts testified to with respect to the negligence of the city, which it is alleged caused the injury to defendant in error, be accepted as true, do those facts constitute such negligence on the part of the city that the jury were warranted in finding the verdict complained of? In other words, do the facts testified to with respect to the city's negligence render it liable in law to defendant in error for her alleged injuries?

The only instruction asked by defendant in error and given by the court dealt in a general way with the right of a pedestrian upon the streets of a city to presume that th city has done its duty in keeping its sidewalks in order, etc., and that a pedestrian exercising ordinary care in walking on a sidewalk is not required to anticipate danger or to be on the lookout for its existence, etc., while the instructions for the city (plaintiff in error) rightly also told the jury the degree of evidence required to prove the negligence of the city, that, if there was a sufficient safe space on the sidewalk at the point mentioned in the declaration for defendant in error (plaintiff) to have passed in safety by the use of ordinary care on her part, she should have taken the safe route, and emphasized the established principle of law that, to entitle defendant in error to a verdict for damages, she had to prove that the iron cover on the catch-basin where she alleged she sustained...