City Of Richmond v. Leaker
| Decision Date | 13 December 1900 |
| Citation | 99 Va. 1,37 S.E. 348 |
| Parties | CITY OF RICHMOND. v. LEAKER. |
| Court | Virginia Supreme Court |
MUNICIPAL, CORPORATIONS — INJURIES — OBSTRUCTION OP SIDEWALK OR STREET—DECLARATION — BILL OF PARTICULARS — INSTRUCTIONS—DUTY TO EXERCISE CARE. 1. In an action against a city for injuries alleged to have resulted from its negligence in unlawfully permitting a sidewalk to be obstructed, the declaration set forth in detail the character of the action, and the circumstances leading to it, and alleged that plaintiff thereby had his right arm broken between the elbow and shoulder, and became sick, sore, lame, diseased, and disordered, and so remained from thence hitherto, during all of which time he thereby suffered and endured great pain, and was prevented from attending to and transacting his necessary and lawful game business, and was forced to give it up, and was also disabled from pursuing any business requiring the use of his right arm, and that he had been obliged to expend $500 to get cured of his wounds, sickness, etc. Held, that the declaration gave defendant complete notice of the nature and character of plaintiff's claim, and that no further bill of particulars was required.
2. In an action against a city for injuries alleged to have resulted from its negligence in unlawfully permitting a sidewalk to be obstructed, it was error to refuse instructions intended to inform the jury that defendant had a right to permit persons erecting buildings to use a portion of the streets and sidewalks for the deposit of building materials and appliances therein, and that, where they are deposited in a street, and are open and obvious, travelers or pedestrians passing thereby must observe greater care to avoid accident than would otherwise be necessary.
3. Where a traveler or pedestrian, in passing along a street, sees an obstruction therein, it is his duty to exercise greater care, whether the circumstances are sufficient to arouse his fear or not.
4. In an action against a city for injuries alleged to have resulted from its negligence in unlawfully permitting a sidewalk to be obstructed, the jury were instructed that the burden of proving defendant guilty of negligence rested on plaintiff, and that, if defendant sought to relieve itself from liability by reason of plaintiff's contributory negligence, the burden of proving such negligence rested on it Held, that the instruction should have concluded as follows: "Unless such contributory negligence was disclosed by the plaintiff's evidence, or could be fairly inferred from the circumstances."
Appeal from law and equity court of city of Richmond.
Action by one Leaker against the city of Richmond. From a judgment for plaintiff, defendant appeals. Reversed.
Pollock & Puller and C. V. Meredith, for appellant.
Henry R. Pollard, for appellee.
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff in consequence of the negligence of the defendant in unlawfully permitting the sidewalk of one of its streets to be obstructed.
The first error assigned is the action of the court in accepting as sufficient the statement filed by the plaintiff, in response to the demand of the defendant, as a bill of particulars of his claim; the contention being that the statement filed is but a reiteration of the allegations of the declaration, and not such an itemized account of the claim as is contemplated by section 3249 of the Code. That section provides that "in any action or motion the court may order a statement to be filed of the particulars of the claim, or of the ground of defence; and if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration or other pleading of such party, so plainly as to give the adverse party notice of its character."
This section, in the same words, is found in the Code of 1849, and it appears from the report of the revisors (1849) that it was taken...
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Kelly v. Schneller
...This is the construction which has been placed upon the statute by the Massachusetts courts, from whose Code it was taken. Richmond Leaker, 99 Va. 1, 37 S.E. 348; Blake Ewart, 1 Allen (Mass.) 248; Commonwealth Giles, 1 Gray (Mass.) "While the question of whether or not such statement shall ......
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Wood v. Am. Nat. Bank
...of the claim, or of the ground of defense, when not sufficiently described in the notice, declaration, or other pleading. City of Richmond v. Leaker (Va.) 37 S. E. 348. In discussing the subject as to the degree of certainty required in alleging the facts in a declaration, Chitty observes: ......
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Kelly v. Schneller
...This is the construction which has been placed upon the statute by the Massachusetts courts, from whose Code it was taken. Richmond v. Leaker, 99 Va. 1, 37 S. E. 348; Blake v. Ewart, 1 Allen [Mass.] 248; Commonwealth v. Giles, 1 Gray [Mass.] 466. "While the question of whether or not such s......
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Pocahontas Collieries Co v. Rukas' Adm'r
...Code 1904, which, in a proper case, entitles him to demand a more specific statement of the real ground of complaint. City of Richmond v. Leaker, 99 Va. 1, 37 S. E. 348; Wood v. Am. Nat. Bank, 100 Va. 306, 40 S. E. 931. The second assignment of error involves the ruling of the court in sust......