City Of Richmond v. Best

• Decision Date: 07 December 1942
• Citation: 180 Va. 429,23 S.E.2d 224
• Court: Virginia Supreme Court
• Parties: CITY OF RICHMOND. v. BEST.

23 S.E.2d 224

180 Va. 429

CITY OF RICHMOND.

v.BEST.

Supreme Court of Appeals of Virginia.

Dec. 7, 1942.

Error to Hustings Court, Part 2, City of Richmond; Willis C. Pulliam, Judge.

Suit by John Best against the City of Richmond to recover for injuries sustained when the automobile which the plaintiff was driving skidded on a city street and crashed into a concrete light pole. To review a judgment for the plaintiff, the defendant brings error.

Judgment reversed and cause remanded with directions.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, J J.

Horace H. Edwards and Olin A. Rogers, both of Richmond, for plaintiff in error.

Charles W. Crowder, Donald D. Williams, and Lewis W. Martin, all of Richmond, for defendant in error.

CAMPBELL, Chief Justice.

This is a personal injury case in which the plaintiff, John Best, recovered a judgment against the defendant, City of Richmond, for the sum of $10,000, which the defendant, upon writ of error, is seeking to reverse.

The first assignment of error is: "The failure of the trial court to set aside the verdict and enter judgment for the defendant upon the ground that the plaintiff was guilty of contributory negligence as a matter of law."

On the morning of January 3, 1940, at 12:45 a. m., plaintiff was awakened by his wife, in order that he might go to the plant of the American Tobacco Company to get five women, employees of the plant, and convey them to their respective homes. When he arrived at the plant, the women entered the automobile and were seated, two of them upon the front seat with the plaintiff and three upon the rear seat. After leaving the plant, plaintiff proceeded down the Petersburg pike to Hull street, and thence northwardly down Hull street to near its intersection with Eighth street, at which point the automobile crashed into a concrete light pole situated on the left side of Hull street. The car was completely demolished and the plaintiff, as a result of the accident, was totally and permanently paralyzed, due to injury to the cervical portion of the spine. He also received a fractured leg which he later lost by amputation.

No question is raised by defendant as to the extent of plaintiff's injuries or the amount of the damages awarded.

The basis of plaintiff's right of action is that the accident resulted from a formation of ice upon Hull street between Ninth and Tenth streets, caused by a broken water main; that the water main had not been repaired at the time of the accident; that no precautions had been taken to make the street safe for travel after the ice had formed; and that no warning of the dangerous condition of Hull street was given.

It is conclusively shown by the evidence that the weather was extremely cold for a period of time prior to the accident. It is further shown that on December 31, 1939, the police department of defendant had notice of the break in the water main and the icy condition of Hull street. On the morning of January 2, 1940, the icy condition of Hull street was brought to the attention of the Department of Public Works, which is charged with the upkeep of city streets, and also to the Department of Public Utilities, which has supervision over the water system. The Department of Public Utilities, upon receiving notice of the break in the water main, sent one of its employees to the scene. He found that water was coming out upon the street, but did not consider the situation sufficiently serious to stop traffic over the street; nor did he, at this time, have anything done to stop the leak. Later in the day cinders were scattered over the area where the water was running and where the ice had formed. Not until seven o'clock that evening was any effort put forth to ascertain the source of the leak. About nine o'clock p. m. the two superintendents of the water and street departments had men on the scene operating a compressor, drilling holes through the cobble stones along the street, in an effort to find the leak. When this operation was begun, a "Men Working" sign was placed at Tenth street in the northbound traffic lane. This sign was flanked by two lighted lanterns. At the time the men were operating the compressor, the water was leaking 150 feet north of the sign near Ninth street, the thermometer was below freezing and a sheet of ice was forming on the east side of Hull street. In an effort to remedy this situation, two tons of sand had been scattered on the street that night at approximately 8:30 p. m. Efforts to locate the break in the water main continued until 11:30 p. m., but without success. Though the thermometer registered below the freezing point, and the water continued to flow, it was decided to abandon operations until the following day. Before the men left Hull street they parked the air compressor against the east side of the street and left the sign "Men Working" at Tenth street, flanked by two lighted lanterns. Another "Men Working" sign was placed near Ninth street and lanterns were placed every few feet alongside the eastern rail of the.street car track to Ninth street. While these lanterns were burning at 11:30 p. m., there is a conflict of evidence in regard to their burning when the accident occurred. The evidence is conclusive that the employees of the defendant left Hull street without putting up a detour sign, without notifying the traveling public of the dangerous condition of the street due to the formation of the ice, or without erecting any barrier to protect the traveling public.

It is a matter of common knowledge that "Men Working" signs are placed along the highways and city streets to protect workers thereon, and they are in no sense proclamations of danger ahead due to the dangerous condition of the street or highway.

While exceptions were taken to the evidence offered by plaintiff that several cars had skidded on the ice during the day of January 2nd, and that several minor accidents had occurred by reason of the ice on the street, no complaint of this evidence is offered in the petition for a writ of error. Whether the evidence was admissible is, therefore, not an issue. However, it plainly shows that the agents of defendant were derelict in their duty in regard to remedying the dangerous situation.

The plaintiff has, in our opinion, borne the burden imposed upon him by law of showing that the defendant was guilty of actionable negligence and is entitled to recover damages, unless he was guilty of such contributory negligence as bars a recovery. This conclusion is supported by the assignment of error which raises the sole question that plaintiff was guilty of contributory negligence as a matter of law.

Has the defendant borne the burden of showing that plaintiff was guilty of contributory negligence which bars a recovery? We think not.

The evidence relied upon by defendant to sustain its contention is to the effect that plaintiff was running at an excessive rate of speed when he entered Hull street where the ice had formed, as evidenced by the fact that he traveled three hundred and forty-seven feet after the skidding began; and that the ice upon the street was open and obvious and, therefore, plaintiff should have observed the situation.

On the question of the rate of speed plaintiff was traveling at the time of the accident, the evidence is in conflict. Police officer Meeks testified in regard to the rate of speed: "I couldn't say for sure. It looked like it was doing 30 or 3'5 miles an hour."

L. E. Newcome, a street car motorman, testified that a black car which looked like the wrecked car, passed him six blocks from the scene of the accident, going at a rapid rate of speed.

The plaintiff was not questioned as to the rate of speed he was traveling when the car began to skid.

Sadie Randolph, a witness for plaintiff, in answer to the question: "How fast was John driving?" answered, "I don't know how fast he was driving, but he wasn't driving very fast. He was a very careful driver."

Ida Woodson, a witness for plaintiff, stated that she could not state the speed the car was going at the time it began to skid, but that it was "going slow;" that plaintiff was "a nice driver, never going fast."

A most significant fact appearing in the evidence is that while the occupants of plaintiff's car were being taken from the wreckage, another car skidded over the same route taken by plaintiff's car.

On the second phase of the question, viz, that the dangerous condition of the street due to the ice was "open and obvious, " we are of opinion that defendant has failed to carry the burden of proof. There is no evidence whatever that ice was on any of the streets of the city except on Hull street. Before reaching Hull street, the roadway was dry. Had there been snow or ice on the streets generally, this condition might have been a warning to proceed cautiously. Until one approached the icy area, there was nothing except the "Men Working" signs, flanked by lanterns, to indicate anything unusual.

From the fact that several cars had skidded on the ice and that a part of the street was covered with sand, the jury was warranted in drawing the conclusion that the dangerous condition was not open and obvious.

While it is argued that there is no conflict in the evidence on the question of obvious danger, we are of opinion that there is such a conflict and that its determination was a question for the jury.

Mrs. Pearl Kaloski, when questioned in regard to the icy condition of the street, stated: "You couldn't see it very good; you had to get almost to it. Some places it was more than other places."

It is contended that the place in Hull street where the ice began to form is illuminated by three ornamental lights. While it is true that the witness Wiley testified that these lights were burning at 7:30 p. m., there is no evidence that they were burning at the time of the accident, at 12:45 a. m.

On the question of the contributory negligence of the plaintiff, the case has been...