City Of Radford v. Calhoun

• Decision Date: 19 September 1935
• Citation: City Of Radford v. Calhoun, 165 Va. 24, 181 S.E. 345 (1935)
• Parties: CITY OF RADFORD. v. CALHOUN.
• Court: Virginia Supreme Court

181 S.E. 345

CITY OF RADFORD.

v.CALHOUN.

Supreme Court of Appeals of Virginia.

Sept. 19, 1935.

Error to Circuit Court, Montgomery County.

Suit by Robert S. Calhoun against the City of Radford. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, CHINN, and EGGLES-TON, JJ.

H. C. Tyler, of East Radford, for plaintiff in error.

Gilmer, Wysor & Gilmer, of Pulaski, for defendant in error.

EGGLESTON, Justice.

Robert S. Calhoun instituted suit against the city of Radford, a municipal corporation, to recover damages for the personal injuries sustained by him, as well as the damage done to his automobile, which, while driven by himself, collided with a pile of concrete curbing slabs extending into the hard-surfaced portion of one of the city's streets. The parties will be referred to as they appeared before the court below.

The city denied that it was guilty of negligence which proximately caused the accident, and claimed that the collision was due to the negligence of the plaintiff himself. The jury returned a verdict for $500 in favor of the plaintiff. On this verdict the lower court entered the judgment which is here for review on a writ of error granted the city.

Norwood street, in the city of Radford, runs approximately east and west, is 38 feet wide from curb to curb, and crosses, by a bridge 266 feet long, a small stream known as Conley's Run. About January 2, 1933, the city began a fill to supplant the bridge, and this work was in progress when the accident happened on March 9, 1934.

For some reason which does not clearly appear from the record, the city had torn up a strip of 24 feet of the southern curbing of Norwood street at or near its intersection with Grove avenue. This was approximately 127 feet east of the eastern end of the bridge. This curbing, which consisted of a number of concrete slabs, each 2 feet wide, 1 foot thick, and 6 feet long, was placed near the intersection of Norwood street and Grove avenue so as to make a pile 14 or 15 feet long and 3 feet wide. This pile of concrete slabs extended 16 inches into the southern edge of the paved and used portion of Norwood street.

So far as the record discloses, at the time of the accident the filling under the bridge in no way interfered with the maintenance of two-way traffic across the bridge and along Norwood street. The only disturbance to the surface of Norwood street was the removal of this concrete curbing and the piling of it on the side of the street in the manner described.

On the evening of March 9, 1934, at about 9 o'clock p. m, the plaintiff was driving a new Chevrolet car eastward-ly along Norwood street, which is a part of the Lee highway. He was returning from his home at Belspring, Va, to the Virginia Polytechnic Institute, at Blacksburg, Va, where he was a student. According to his testimony, he had crossed the bridge and was proceeding about 20 miles an hour when he noticed another car meeting him. This car was coming down a slight incline on Norwood street andapproaching the eastern end of the bridge. It seemed to be swaying, its lights were not lowered, and it was near the center of the street. Thinking it best to give the approaching car plenty of room, the plaintiff removed his foot from the accelerator and directed his course further towards his right-hand side of the street. Just as the two cars passed, the right front of the plaintiff's car crashed into this pile of concrete curbing. When the plaintiff's car came to a stop, all four wheels were on the paved surface of the street, and his right front wheel was against one of the concrete slabs.

There was no barrier surrounding this pile of material, nor was there any red light placed thereon. The only warning claimed by the city of the presence of the obstruction was contained in two brightly lighted signs, strung across the street, about 14 feet above the pavement. These signs were erected about thirty days after the work began and more than a year before the accident. They read: "Drive With Care Limit 2 Tons Will Be Enforced Slow Down 15 Mi." One sign was placed directly over the western entrance to the bridge and the wording on it was visible only to an eastbound driver. The other sign was strung across the street just over the pile of concrete slabs, but its wording, was visible only to a driver approaching the bridge from the east, and could not be seen by Calhoun as he crossed the bridge going in the opposite direction.

While the plaintiff admitted that in going over the road on former occasions he had observed these signs, he earnestly contends that they related to traffic on the bridge and gave no notice of the presence of this obstruction.

On his previous trips along this route he had not noticed the pile of slabs nor had he paid particular attention to the filling going on under the bridge.

His car was new and. adequately equipped with brakes and lights in good order and condition.

While there are several assignments of error, the fundamental question in the case is, Was the jury justified in finding (1) that the city was guilty of actionable negligence, and (2) that the plaintiff was free of contributory negligence?

The general principles applicable to cases of this character are well settled.

"The, city is not an insurer of the safety of its streets, and is required to use only reasonable care to keep them in a reasonably safe condition." City of Danville v. Sallie, 146 Va. 349, 352, 131 S. E. 788, 789.

"The public is entitled to the full and free use of all the territory embraced within a highway in its full length and breadth." City of Richmond v. Smith, 101 Va. 161, 167, 43 S. E. 345, 346; City of Richmond v. Pemberton, 108 Va. 220, 226, 61 S. E. 787; Appalachian Power Co. v. Wilson, 142 Va. 468, 473, 129 S. E. 277.

"In cases of temporary necessity a municipality may allow obstructions on the public sidewalks or streets, but the traveling public should be warned of and protected against the same in some proper manner." And for failure to perform its duty the city is liable. Arthur v. Charleston, 51 W. Va. 132, 41 S. E. 171; City of Norfolk v. Johnakin, 94 Va. 285, 289, 26 S. E. 830.

What is reasonable care on the part of a city in keeping its streets in a reasonably safe condition, and whether an obstruction renders a street unreasonably unsafe for travel, is a question for the jury under all of the circumstances of the particular case. City. of Richmond v. Pemberton, 108 Va. 220, 227, 61 S. E. 787; City of Richmond v. Rose, 127 Va. 772, 781, 102 S. E. 561, 105 S. E. 554.

Likewise the sufficiency of the warning of the obstruction, whether a barrier, a red light, or an overhead light, is necessary or sufficient, is a question for the jury. Wilson v. City of Elkins, 86 W. Va. 379, 103 S. E. 118.

Whether a traveler on a street has exercised reasonable care for his own safety, or was guilty of contributory negligence in a case of this character, is ordinarily a question for the jury, depending upon all of the circumstances of the case. City of Richmond v. Rose, 127 Va. 772, 790, 102 S. E. 561, 105 S. E. 554.

Testing the case by these principles, we think the evidence is sufficient to support the verdict of the jury.

To say the least, we think the jury had the right to find that this pile of concrete slabs which encroached upon the paved and used portion of Norwood street, a part of one of the principal state highways, was a dangerous obstruction.

Viewing the matter most favorably from the city's standpoint, it was, at least, a question for the jury as to whether the above-described signs gave any indication, or adequate or sufficient warning, of the presence of this obstruction.

It will be recalled that the plaintiff was driving eastwardly at the time of the accident. As he reached the western end of the bridge, he passed under the sign reading: "Drive With Care Limit 2 Tons Will Be Enforced Slow Down 15 Mi." This sign was 493 feet from the obstruction. While there was a similar sign stretched across the street just above the pile of concrete slabs, its wording was visible only to westbound travelers. It could not be seen by the plaintiff as he crossed the bridge from west to east.

If the signs were intended to warn a traveler of possible obstructions due to work which was under progress east of the bridge, why was it necessary that one of the signs be placed near the eastern entrance to the bridge in such a manner that it could be read only by a driver going in a westwardly direction, after he had passed the construction work? There is no claim that there was any work going on west of the bridge. Why warn a westbound driver, as he approached the bridge, that he was leaving construction work behind?

Furthermore, at each entrance to the bridge, on posts, were other signs reading: "Speed Limit On Bridge 15 Mi. Police Department." It is admitted that these latter signs were erected at least ten years prior to the accident and related solely to traffic on the bridge.

No doubt the jury thought that all of these signs related to traffic on the bridge because of the filling which was going on underneath. We think they were justified in finding that the signs did not give a traveler adequate, if, indeed, any, notice of this obstruction in the street.

But the city argues that, regardless of the absence of a red light on the slabs, and regardless of the absence of proper signs warning a traveler of the presence of this obstruction, since the pile of slabs was sufficiently shown by the bright lights from the sign directly above, the plaintiff's failure to see and avoid the obstruction was the proximate cause of the accident, or at least made him guilty of contributory negligence so as to bar his recovery.

The plaintiff admits that he probably would have seen the obstruction had his attention not been momentarily diverted from the street ahead by the actions of the oncoming car.

The jury has said...