City of Virginia Beach v. Roman, 5080

Decision Date13 June 1960
Docket NumberNo. 5080,5080
Citation114 S.E.2d 749,201 Va. 879
PartiesCITY OF VIRGINIA BEACH v. MARY L. ROMAN. Record
CourtVirginia Supreme Court

Richard B. Kellam (Roy Smith; Kellam & Kellam, on brief), for the plaintiff in error.

Richard G. Brydges (Thomas C. Broyles, on brief), for the defendant in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Mary L. Roman, hereinafter called plaintiff, recovered a verdict for $4,000 against the City of Virginia Beach for personal injuries sustained by her while walking on city property. The city's motion to set aside the verdict as contrary to the law and the evidence was overruled, and judgment entered for plaintiff. We granted the city an appeal.

The accident occurred when plaintiff stepped into a hole in a grass plot located between the concrete walk which extends in a northerly and southerly direction along the Atlantic Ocean and a row of hotels which face eastwardly toward the walk and ocean. The city concedes that it owns the grass plot where the hole was located and that it was obligated to use reasonable care to keep that area in a reasonably safe condition. However, the city asserts that the evidence is insufficient to support the verdict because it fails to prove that the municipality had any actual or constructive notice of the existence of the defect in the grass plot.

The Traymore Hotel where plaintiff had been on vacation for several days before the accident is located on the ocean front at 7th street. A cement walkway extends eastwardly from the front of the hotel to the eighteen-foot wide concrete walk or bulkhead which extends northwardly from 7th street along the ocean front to 35th street, a distance of 1.8 miles. Between the concrete walk to the east and the line of hotels that front toward the ocean there is a grass plot thirty or forty feet wide, which extends the length of the concrete walk. On the western edge of the concrete walk there is a curb nine inches wide and six inches high, and on the walk, touching the inside of the curb, is an iron pipe ten inches in diameter which runs a considerable distance along the walk. It was placed there by the city's Erosion Commission, and sand is pumped through it by the city to prevent erosion and repair defects caused thereby. Pedestrians going to and from the hotels to the concrete walk have to step over the pipe in traversing that area.

During the morning of August 7, 1957, a dry and sunny day, plaintiff had been on the beach, and about 10:30 a.m. while returning to the Traymore Hotel, she stepped from the concrete walk over the pipe and curbing into a hole in the grass plot just west of the curb. The depth of the hole was up to her knee, and upon stepping into it, she broke her leg. She testified that when she crossed the pipe onto the grass she did not see where she was stepping; she could not see directly behind the pipe though she could see a foot or two beyond the pipe. She also stated that she did not notice whether there was grass over the hole; that it 'could have been covered with grass,' and that there was grass beside and opposite it.

The evidence shows that within the city limits there is considerable erosion of the beach area which manifests itself chiefly in and along the grass plot between the concrete walk and the line of hotels and other buildings. This erosion or washing out of sand and earth under the grass often causes holes to appear in the earth, sometimes suddenly and without previous indication, and at times it has been necessary that large areas be roped off for the protection of the public. To combat and rectify this condition the city established and maintains its Erosion Commission and conducts a control program, the purpose of which is to protect the beach, walk and adjacent area from and repair defects caused by erosion. Under the erosion control program there is constant inspection and examination of the pipe through which sand is pumped, and inspection of the grass plot and cement walk for evidence of defects. In making these inspections a truck containing several men travels up and down the concrete walk a number of times each day, and the men inspect the pipe and look at the grass plot, but they do not get out of the truck to press upon or probe the sod during their visual inspection of the area. If a defect is observed, the workmen leave the truck and make the necessary repairs. The hotels along the beach front customarily keep the lawns cut and their guests often sit upon the grass plot, use it for sunning, and quite frequently walk upon it in going to and from the beach. The erosion control crew does not cut the grass unless the hotels neglect to do so and allow it to grow six or eight inches high. One of the inspectors who observed the hole after the mishap testified as to its size and appearance as follows:

'Q. Did you observe this hole after the accident?

'A. Yes.

'Q. What was the size of it?

'A. I imagine about a foot, maybe a foot and a half.

'Q. About like that (indicating)?

'A. Yes.

'Q. The grass grew down in it?

'A. Yes. I guess that is what caved it in.'

Plaintiff, having obtained a verdict and judgment, is entitled to have the evidence viewed in the light most favorable to her. The judgment may not be vacated 'unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.' Section 8-491, Code 1950. Burks Pleading and Practice, 4th ed., §§ 247, 428. Yet if the judgment is plainly wrong or without evidence to support it, then it is our duty to reverse it and set aside the verdict. Thalhimer Bros., Inc. v. Buckner, 194 Va. 1011, 76 S.E.2d 215; Holloway v. Smith, 197 Va. 334, 88 S.E.2d 909.

The record is wholly devoid of any evidence that even remotely tends to prove that the city had actual notice of this defect. It is, however, contended by plaintiff that the evidence is sufficient to show that the city had constructive notice of the defect because it...

To continue reading

Request your trial
4 cases
  • Sfreddo v. Sfreddo
    • United States
    • Virginia Court of Appeals
    • 24 Enero 2012
    ...S.E.2d at 915 (emphasis added); see also Walrod v. Matthews, 210 Va. 382, 391, 171 S.E.2d 180, 187 (1969); City of Va. Beach v. Roman, 201 Va. 879, 882, 114 S.E.2d 749, 751 (1960); Thalhimer Bros., Inc. v. Buckner, 194 Va. 1011, 1013, 76 S.E.2d 215, 217 (1953). In reversing the trial court,......
  • City of Richmond v. Holt
    • United States
    • Virginia Supreme Court
    • 7 Junio 2002
    ...must have actual or constructive notice of the particular defect that gave rise to the injury. City of Virginia Beach v. Roman, 201 Va. 879, 882-84, 114 S.E.2d 749, 752-53 (1960); West v. City of Portsmouth, 196 Va. 510, 513-15, 84 S.E.2d 503, 505-07 (1954); Travis, 149 Va. at 534-35, 140 S......
  • Allen v. Brooks
    • United States
    • Virginia Supreme Court
    • 5 Marzo 1962
    ...incumbent upon us to uphold this verdict unless it is plainly wrong or without credible evidence to support it. Virginia Beach v. Roman, 201 Va. 879, 881, 882, 114 S.E.2d 749; Danner v. Cunningham, 194 Va. 142, 147, 72 S.E.2d 354. In this Commonwealth, we follow the salutary rule that quest......
  • Tindall v. H&S Homes, LLC
    • United States
    • U.S. District Court — Middle District of Georgia
    • 15 Marzo 2012

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT