City Of Richmond v. Schonberger

• Decision Date: 09 June 1910
• Citation: 111 Va. 168,68 S.E. 284
• Parties: CITY OF RICHMOND et al. v. SCHONBERGER.
• Court: Virginia Supreme Court

68 S.E. 284

111 Va. 168

CITY OF RICHMOND et al.

v.SCHONBERGER.

Supreme Court of Appeals of Virginia.

June 9, 1910.

1. Municipal Corporations (§ 757^*)—Streets —Duty to Keep in Safe Condition.

It is the duty of a city to keep its streets in a reasonably safe condition.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1591-1597; Dec. Dig. § 757.*]

2. Municipal Corporations (§ 803*)—Streets —Defective Sidewalks—Street Crossing —Care Required op Pedestrian—"Sidewalks."

While a street crossing may be considered in a sense as a part of the sidewalk, one passing over such crossing may more reasonably expect obstructions, and should exercise a greater degree of care than when on the sidewalk, strictly so called.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1673, 1682; Dec. Dig. § 803.*

For other definitions, see Words and Phrases, vol. 7, pp. 6505-6507; vol. 8, p. 7800.]

3. Municipal Corporations (§ 768*)—Defects and Obstructions in Streets-Crossings—Personal Injuries.

A city, which built a street crossing, consisting of two parallel paths of flagstones, laid smooth and level, and separated by a small space filled with pieces of stone, was not liable to one for injuries through striking with her foot one of such pieces of stone, which projected about two inches above the level, and being thereby caused to fall.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1622-1625; Dec. Dig. § 768.*]

Error to Circuit Court of City of Richmond.

Action by Mary E. Schonberger, an infant, by next friend, against the City of Richmond and others. From the judgment, defendant city brings error. Reversed, and remanded for new trial.

H. R. Pollard, Bev. T. Crump, and Emmett Seaton, for plaintiff in error. L. O. Wenderburg, for defendant in error.

KEITH, P. Mary E. Schonberger, an infant under 21 years of age, brought suit by her next friend against the city of Richmond, William E. Fletcher, and Charles Gasser, to recover damages for an injury received by her, due, as she claims, to their negligent conduct.

It is the duty of the city of Richmond to keep its streets in a reasonably safe condition, and in the performance of this duty it employed the defendants Fletcher and Gasser to put in proper order the crossing on the south side of Louisiana street at its intersection with Eighth street. The crossing was made of two parallel lines of stone flagging, separated from each other by a short distance, the intervening space to be filled in with stones. The declaration alleges that it is the duty of the city, in paving and filling in this space, to do the work so as not to cause the same to be a defect in and obstruction upon Eighth street, but that the city and its employes, unmindful of their duty in this behalf, filled in the open space between the lines of flagging with stone blocks, and left them projecting above the level of the flagging about 2 1/2 inches, against which the plaintiff, without negligence on her part, struck her foot while crossing Eighth street in the nighttime, and was thrown and greatly injured.

Fletcher and Gasser were made parties defendant by virtue of a provision of the charter of the city (Acts 1899, p. 288) which provides that "in any action against the city to recover damages against it, for any negligence in the construction and maintenance of its streets, alleys or parks, where any person is liable with the city for such negligence, every such person shall be joined as defendant with the city in any action brought to recover damages for such negligence, and where there is a judgment or verdict against the city, as well as the other defendant, it shall be ascertained by either the court or the Jurywhich of the defendants is primarily liable for the damages assessed."

The case was tried before a jury, which rendered a verdict in favor of the defendant Gasser, and against the city of Richmond and William E. Fletcher for the sum of $3,000, and further found that Fletcher was primarily liable therefor. During the progress of the trial numerous exceptions were taken, but in the view that we take of the case it will only be necessary to consider one of them, as its decision will be conclusive of the controversy and render unnecessary the consideration of subordinate questions.

Stating the case of the defendant in error as strongly as is warranted by the evidence, it amounts to this: On the evening of May 16, 1908, she with two other female companions were passing along Louisiana street, going in the direction of Williamsburg avenue. When she reached the crossing of Eighth street the light fell so as to...