Dockery v. City of Norton

• Decision Date: 02 December 1963
• Docket Number: No. 5650,5650
• Court: Virginia Supreme Court
• Parties: PHYLLIS DOCKERY, AN INFANT, WHO SUES BY ROY DOCKERY, HER FATHER AND NEXT FRIEND v. CITY OF NORTON. Record

Page 296

133 S.E.2d 296

204 Va. 752

PHYLLIS DOCKERY, AN INFANT, WHO SUES BY ROY DOCKERY, HER FATHER AND NEXT FRIEND v. CITY OF NORTON.

Record No. 5650.

Supreme Court of Appeals of Virginia

December 2, 1963.

Stanley H. Botts and Carl W. Newman (Shannon & Newman, on brief), for the plaintiff in error.

Robert T. Winston (W. T. Bowen, on brief), for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Phyllis Dockery, an infant twelve years of age, suing by her father and next friend, filed a motion for judgment against the City of Norton to recover damages for injuries received by her while playing or climbing on a large drainage pipe which the city had stored, in anticipation of its installation, on a grass plot between the sidewalk and curb on one of its streets. The motion alleged that as the plaintiff climbed on the pipe it rolled and crushed her leg between that and another pipe. It was further alleged that the accident and the plaintiff's injuries were proximately caused by the negligence of the city, in that it stored the pipe without taking the necessary precautions to prevent its rolling, failed to erect barricades around this dangerous material, and failed to erect and maintain signs warning the public of its dangerous nature.

The defendant city filed its grounds of defense denying that it was guilty of negligence which was the proximate cause of the plaintiff's injury and alleging that she was guilty of contributory negligence.

There was a jury trial and at the conclusion of the plaintiff's evidence the lower court struck the evidence and directed a verdict for the defendant. To review the judgment rendered on that verdict we granted the plaintiff a writ of error.

These are the facts relevant to this appeal: Prior to the date of the accident, which occurred on September 17, 1957, the city had been installing drainage pipes along Tenth street. These pipes were round, constructed of concrete, and in sections 6 feet long, 28 inches in diameter, and weighing approximately 900 pounds. In preparation for the installation, the city employees had placed a number of these sections along the grass plot between the sidewalk and the curb. The sections were placed parallel to one another, and perpendicular to the sidewalk and curb. The grass plot was level and none of the sections of the pipe had been scotched or anchored to prevent its rolling or moving. Nor was there any barricade or obstruction to prevent access to the area where this material was stored, or signs indicating that the area was a dangerous one. The sections of pipe had been stored in this manner for several weeks prior to the date of the accident.

The storage area was within a block of a city school and there was evidence that children had frequently played on and around the pipes.

Evan Norton, the City Manager, testified that he was aware of these pipes in the area and the manner in which they had been stored. Because of the weight of the pipes and the force which he thought would be required to move or roll them, he did not deem it necessary that they be chocked or scotched. He was likewise aware that there were no barricades around the area where the material was stored. He also admitted that he knew that children might be attracted by the pipes and play there, and that is 'would be dangerous' for them to do so.

On the afternoon of the day of the accident the plaintiff, Phyllis Dockery, then twelve years old, who lived near by, accompanied by her sister and a friend, had been sent on an errand to a store. Returning along Tenth street, they decided to rest. The friend and sister sat on the grass plot while Phyllis 'jumped up on' one of the sections of pipe. Since this section was not scotched or anchored it began to roll toward another section. As she attempted to extricate herself from the pipe it continued to roll and her leg was caught between it and the next section, causing severe injuries to her.

While Phyllis had seen other children playing on the pipes, she had been told by her mother not to do so. This, she said, was the only instance in which she had disobeyed that command.

In striking the plaintiff's evidence, the material portion of which has been related, the lower court held that it was not sufficient to show that the city was guilty of any negligence which was the proximate cause of the accident and the plaintiff's injuries. Counsel for the plaintiff insists, and we agree, that this was an issue which should have been submitted to the jury under proper instructions.

It is elementary that a municipal corporation must exercise ordinary care to keep its streets in a reasonably safe condition for public use and travel. 17 Mich. Jur., Streets and Highways, § 118, pp. 614-5. This duty extends to the entire width of the city's street, including the space within the bounds of the street set apart between the sidewalk and the roadway for a grass plot. 17 Mich. Jur., Streets and Highways, § 122, pp. 620, 621; Townley v. City of Huntington, 68 W.Va. 574, 70 S.E. 368, 369, 34 L.R.A., N.S., 118; Mayor and Council v. Hertzler, 167 Md. 518, 175 A. 447, 448; Johnson v. Bay City, 164 Mich. 251, 129 N.W. 29, 31, Ann. Cas. 1912B 866. See also, 25 Am. Jur., Highways, § 407, p. 702; Annotation, 19 A.L.R.2d 1057, 1059.

While there is some conflict on the subject, the great weight of...