City Of Roanoke v. Sutherland.*

• Decision Date: 12 January 1933
• Citation: 167 S.E. 243
• Parties: CITY OF ROANOKE. v. SUTHERLAND.*
• Court: Virginia Supreme Court

167 S.E. 243

CITY OF ROANOKE.

v.SUTHERLAND.^*

Supreme Court of Appeals of Virginia.

Jan. 12, 1933.

HUDGINS and CHINN, JJ., dissenting.

Error to Circuit Court, Roanoke City.

Action by Jennie E. Sutherland against the City of Roanoke. Judgment for plaintiff, and defendant brings error.

Reversed, and judgment entered for defendant.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, BROWNING, and CHINN, JJ.

R. C. Jackson, of Roanoke, for plaintiff in error.

T. W. Messick, of Roanoke, for defendant in error.

BROWNING, J.

Jennie E. Sutherland, a woman fifty-nine years old, brought suit against the city of Roanoke to recover damages for alleged injuries sustained by her because of a defect in the sidewalk on Campbell avenue in said city, which constituted, as she claims, negligent conduct on the part of the city.

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

The case was tried before a jury, which rendered a verdict in favor of the plaintiff for the sum of $8,000. This court granted a writ of error. The plaintiff assigns error as follows:

(1) The refusal of the court on motion of the defendant after all the evidence was in, to strike out the plaintiff's evidence.

(2) The refusal of the court to give peremptory instruction A, based on the evidence, and requested by the defendant; and

(3) The refusal of the court, on the defendant's motion, to set aside the verdict of the jury and render judgment in favor of the defendant notwithstanding said verdict.

There is no substantial conflict in the evidence. There is no suggestion by the defendant of contributory negligence on the part of the plaintiff. The assignments of error present the single question of the legal insufficiency of the evidence to show actionable negligence, or the absence of ordinary care on the part of the city in failing to repair the defect complained of in the sidewalk prior to the accident The accident occurred on the 20th of November, 1930, about 9 o'clock in the night. At the place "of the accident the sidewalk was constructed of two rows of concrete blocks each 5 feet x 5 feet. The entire width of the sidewalk was 10 feet. In the middle, where the two rows of concrete blocks came together, the block on the inner side of the sidewalk away from the curb had sunk below the block of concrete next to the curb, that next to the curb remaining in position as it was constructed. The depression ran parallel with the curb and extended a distance of about 12 feet in the center of the sidewalk.

The highest point of elevation was about 1¹/₈ inches and extended 12 feet therefrom to no elevation, or even with the extended portion of the sidewalk. The entire distance presented a depression or elevation averaging 3/4 of an inch. The 1¹/₈ inch elevation or depression extended a distance of 7 inches which gradually decreased to evenness.

There was an arc light diagonally across the street of 250 candle power which was distant from the place of the accident 53 feet, which was sufficient to light or illumine the street 150 feet away. On the side of the street where the accident happened there was a business building, and the place of the accident could be said to have been in a business section of the city. Campbell avenue is one of the main avenues in the city and at the point in question was daily used by many pedestrians. Mrs. Sutherland was unacquainted with the sidewalk and street. She had not been there before for many years. On the night of the accident, in company with her daughter, she had occasion to visit the home of a lady which was very near the place of the depression or elevation. They parked their car on the street some distance from the point of the accident because of the difficulty in finding a place to park nearer. In returning from the place visited about 9 o'clock she and her daughter were proceeding along the walk, she being on the inside and her daughter on the outside, toward the parked car. Upon reaching the point of the depression, a part of her foot struck the elevation and the other part went down, causing her to fall and seriously injure herself. The amount of the recovery is not questioned. On both sides of the street there were parked cars. One directly opposite the depression obscured the light from the arc lamp and caused darkness.

This statement constitutes substantially the facts obtaining in the case except that the condition of the sidewalk at the time of the injury was the same as it had been for some three years and the city was charged with at least constructive notice of such condition. It may be well to say that Mrs. Sutherland was taken to a hospital where she remained for some two months, and she was thereafter treated by physicians and still suffered at the time of the trial of the case and was unable to perform the work and services which she had theretofore done.

Counsel for the city insistently urges that, under the facts stated, no negligence upon its part was shown and that, as a matter of law, it was guilty of no negligence and there was no liability upon it

Counsel for the defendant takes the position that the issues were peculiarily for the determination of the jury, and that the jury having found a verdict for the plaintiff which was sustained by the trial court, the matter was legally concluded and this court should not disturb it

In 13 R. C. L. 351, § 289, it is said: "A municipal or quasi municipal corporation is not responsible for every accident that may occur on its streets or highways, nor is it a guarantor of the safety of travelers thereon or an insurer against all injury which may result from obstructions or defects therein. Nor does it warrant that its streets shall be free from obstructions or defects or that they will be absolutely perfect and safe at all times."

A reasonable degree of care is required of cities in constructing its sidewalks and in keeping them in repair. This is so well established that it is needless to cite authorities with reference thereto.

"What is reasonable care depends upon the danger." Amer. & Eng. Ency. of Law, vol. 21, 466.

"Where any particular act or omission is obviously and indisputably dangerous or the reverse, the court may say that it is evidence of or shows negligence, or express the opposite view." Amer. & Eng. Ency. of Law, vol. 21, 501.

"Or, as the rule has been otherwise expressed, though the facts are not disputed, negligence is still a question for the jury if different conclusions might be drawn by the minds of reasonable men from the facts as established. * * • But this rule does not, as has been seen, apply where the act or omission in question is clearly and obviously fraught with danger, or of a nature indisputably harmless and unlikely to produce injury." Amer. & Eng. Ency. of Law, vol. 21, 506.

This general statement of the duty of the municipal corporation and rules of liability suggests the quaere, Was the precise defect in the sidewalk clearly and obviously fraught with danger or of a nature indisputably harmless and unlikely to produce injuries? To be sure, the jury and the trial court, by their verdict and judgment, have said that it was the former, but are we bound thereby under all of the obtaining circumstances and the law which is applicable thereto.

In the case of Richmond v. Schonberger, 111 Va. 168, 68 S. E. 284, 285; there was a suit for injuries sustained by Miss Schonberger in tripping over a projecting stone 2¹/₂inches above the level of the flagging as she was crossing a street which was constructed of flagging, the space between the flags being filled with stone blocks. One of these blocks constituted the projection referred to. There was a verdict for the plaintiff which was sustained by the trial court. Judge Keith, then president of this court, said: "We are of opinion that the obstruction was not such as to render the city liable in damages." Thus this court announced, as a matter of law, that an Obstruction 2¹/₂ inches in elevation, under the circumstances of that case, did notrender the city liable for the injuries sustained in consequence of the obstruction. In the case cited Judge Keith, in the opinion, quoted from the case of the City of Richmond v. Courtney, 32 Grat. (73 Va.) 708, where it was said by Judge Christian, Judge Moncure concurring, that "a municipal corporation is not an insurer against accidents upon its streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day. It is not to be expected, and ought not to be required, that a city should keep its streets at perfectly level and even surface. Slight obstructions, produced by loose bricks in the pavement, or by the roots of trees which may displace the pavement, from the very nature of things cannot be prevented. And so there cannot be perfect uniformity of a level surface, where curbstones and culverts are necessary to be constructed on the streets. In a large city, with many miles of paved streets, it must often happen, from the very nature of the material out of which the pavement is constructed, that the bricks from the very wear and tear of the use to which they are subjected, will become broken and displaced, so as to cause the fall of a person not careful in walking over them. Certainly, if the obstructions are of such a...