City Of Richmond v. Rose

• Decision Date: 18 March 1920
• Citation: 102 S.E. 561
• Parties: CITY OF RICHMOND . v. ROSE.
• Court: Virginia Supreme Court

102 S.E. 561

CITY OF RICHMOND .

v.ROSE.

Supreme Court of Appeals of Virginia.

March 18, 1920.

Prentis, J., dissenting.

Error to Law and Equity Court of City of

Richmond.

Action by Marian S. Rose against the City of Richmond. Judgment for plaintiff, and defendant brings error. Affirmed.

This is an action by the defendant in error, Marian S. Rose, against the city of Richmond, to recover damages for injury sustained by a fall alleged to have been caused by the defective condition of a sidewalk of the city.

The defendant in error will be hereinafter referred to as plaintiff.

There was a trial by jury. After the testimony both for the plaintiff and defendant was in, and there had been a view by the jury, the city demurred to the evidence. The jury returned a verdict in favor of the plaintiff, subject to the demurrer to evidence. Whereupon the court overruled such demurrer and entered judgment for the plaintiff iu accordance with the verdict. Thereupon the city moved the court to set aside the judgment and verdict, on the ground that the verdict was contrary to the law and the evidence.

The material facts of the case shown by the evidence, as it must be regarded upon demurrer thereto, are as follows:

The accident occurred on one of the sidewalks of Poe street.

The sidewalks on both sides of the street are of concrete, 3 feet in width. Between the sidewalks and the curbing of the street are grass plots, approximately of the same width as the sidewalks, in which plots shade trees of considerable size were standing at the time of the accident, at intervals along on both sides of the street, the whole length of the block. The street runs approximately due east and west. The accident occurred on the sidewalk on the north side of the street, at a point, as one goes westward, about 16 feet from the corner of the block where such street is crossed by Barton avenue. The defect in the sidewalk consisted in this:

A section of the sidewalk, approximately 10 feet in length, between its expansion joints, had been lifted by the roots of a shade tree growing in its location about opposite the center of such section of sidewalk, so that such section was lifted above the level of the sidewalk elsewhere on that side of the street. A difference in level existed all the way across the sidewalk, at both ends of the lifted section, along the lines of the expansion joints, at right angles to the sidewalk; but it was not the same difference at the inner edge of the sidewalk, next to the building line, as it was at the outer edge, next to the street curbing and the.tree. At the inner edge the lifted section stood one-half inch, and at the outer edge two inches, above the level of the other sidewalk, at both ends ofit. There was no break in the section aforesaid, other than its being lifted in the manner described at the expansion joints, which caused the surface of the ends of such section to stand perpendicularly above the level of the sidewalk which joined it at such ends; the elevation being a half inch at the inner edge, gradually increasing to two inches at the outer edge as aforesaid.

The evidence shows affirmatively that the defect aforesaid was the only inequality in the level of the sidewalk on the north side of the street for the entire block on which the accident occurred; and the evidence does not disclose that there were any inequalities in the level of the sidewalk elsewhere on that side of the street, or on the south side of it.

The only material conflict that there is in the case, between the evidence for the plaintiff and that for the city, is on the subject of the obviousness of the obstruction on the sidewalk occasioned by the defect aforesaid. On this subject, in behalf of the plaintiff (among other circumstances in their nature difficult to recount, but at once apparent to a jury on a view after hearing the testimony in the case), the following facts appear in the record:

The elevation of the section of sidewalk aforesaid was in fact high enough to catch the foot of the plaintiff as she was walking slowly, and did in fact cause her fall and the resulting Injury. Further:

The plaintiff did not in fact observe the difference in the elevation aforesaid until she struck her foot against It and fell.

The accident occurred about 2 p. m. on a March day (the 15th of March), when the sun was shining brightly. The plaintiff was walking westward on the outer side of the sidewalk, because of the fact that a servant was walking along the inner side of it; the plaintiff being as nearly beside the servant as the width of the walkway would permit, but a little to the rear of the servant. The plaintiff wore her glasses at the time. She was not in a hurry, and was walking very slowly, as her nine months old baby, in its carriage, was being rolled along by the servant, and as the plaintiff did not allow the carriage to be rolled fast, on account of jarring the baby. The plaintiff did not live in that locality. She was on her way to her mother's, who lived on North avenue. When before that time on Poe street, the plaintiff as a rule walked on the south side of it. She had no knowledge of the defect aforesaid on the north side of the street. On this occasion, as she, the baby, and nurse came to Poe street, instead of turning westward along it on its south side, as the plaintiff's custom was, the servant crossed over to the north side, and the plaintiff "made no objection, " as she testifies, "because It was a chilly day, and [she] thought it was very well for the baby to be on the sunny side of the street."

As they moved along on that side of the street as aforesaid and approached the obstruction aforesaid, the plaintiff saw an acquaintance in an automobile approaching, going eastward along Poe street. How long she looked in his direction does not appear from the evidence, but she did look towards him, and at that hour the sun would have shone almost directly in her face as she looked in that direction, moving, as she was, practically due westward. She bowed her head in greeting to this acquaintance as he passed. As the latter passed, the plaintiff was "about two steps" from the obstruction aforesaid caused by the end of the lifted section of sidewalk nearest her, according to the testimony of a witness for plaintiff. She did not stop at all, but after looking towards the acquaintance (for how long does not appear as aforesaid), and having bowed to him, she turned her gaze back in front of her, "looking straight ahead" as she walked, as she testifies, but as aforesaid, she did not see the obstruction until she struck her foot against it and fell forward upon the sidewalk, causing her serious injury.

At that time of the year, of course, there could have been no great amount of foliage, if any, on the tree aforesaid, which had lifted the section of walkway as aforesaid (and the evidence is silent on this point); but it seems quite sure that its branches, and perhaps its trunk, stood at that hour directly between the sun and the obstruction over which the plaintiff stumbled. And as to what shadow they cast on such obstruction the evidence is also silent, but they must have cast some shadow upon it. There were normal grooves at right angles across the concrete sidewalk, at intervals of approximately every 5 feet, and where the obstruction aforesaid existed a groove was normally to be expected to be seen by a traveler along the sidewalk. Such grooves, where normal, caused no inequality in the level of the sidewalk.

In addition to such circumstantial evidence on behalf of the plaintiff, on the subject of the obviousness of the obstruction, there was the express testimony of a witness for the plaintiff, which was not objected to by the city, in which, referring to the appearance of the inequality in level of the sidewalk caused by said obstruction, such witness said:

"Yes, sir; it is an abrupt rise, and you really can't detect it unless you are paying particular attention, just walking in a casual way."

On behalf of the city, certain photographs were introduced in evidence, which were taken on February 10th, nearly a year after the accident. These photographs do show the obstruction very plainly apparent at a distance of 100 feet, and also from nearer by, and it is proved for the city that the height of the obstruction aforesaid was the same when the photographs were taken as it wasat the time of the accident. But the photographer who took the pictures was not examined as a witness, and it does not appear in evidence at what time of day, or under what conditions of light or shade, or other circumstances, they were taken.

There is no evidence in the record tending to show that no accident had previously resulted from the defect in the sidewalk aforesaid.

H. R. Pollard, of Richmond, for plaintiff in error.

Fulton & Wicker, of Richmond, for defendant in error.

SIMS, J. (after stating the facts as above). The controversy in the case In judgment is not one of law, but of fact.

The law applicable to cases of this character is well settled.

There are two issues involved: (1) Whether the municipality was primarily liable; and, if so, (2) whether there was contributory negligence on the part of the plaintiff, which barred her right of recovery.

The primary liability of the municipality, if it existed, must have arisen from its breach of duty in its failure to exercise reasonable or ordinary care under the circumstances to keep its sidewalk in a reasonably safe condition for travel in the ordinary modes by persons exercising reasonable or ordinary care on their part under the circumstances to avoid accident

The duty of the municipality in the premises was not that of an insurer against accident upon the sidewalk. Not every defect, though it may cause the injury sued for, is actionable. The municipality will not be liable for every mere inequality or irregularity in the surface of the way not likely to cause injury. It is only against danger which it...