Hill v. City Of Richmond

• Decision Date: 20 June 1949
• Parties: HILL. v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

53 S.E.2d 810

189 Va. 576

HILL.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 20, 1949.

Error from Law and Equity Court of City of Richmond; Thomas C. Fletcher, Judge.

Action by Theodore L. Hill against City of Richmond to recover for injuries sustained by plaintiff when he fell while walking along street in defendant city. To review judgment for defendant notwithstanding the verdict, the plaintiff brings error.

Affirmed.

Before HUDGINS, C. J., and SPRAT-LEY, BUCHANAN, STAPLES and MILLER, JJ.

Bowles, Anderson & Boyd, Richmond, for plaintiff in error.

J. Elliott Drinard, Olin A. Rogers, Richmond, for defendant in error.

BUCHANAN, Justice.

Plaintiff fell and broke his leg while walking along Marshall street, in the city of Richmond. He sued the city and the owners of the property in front of which he fell, claiming that his injury was due to a defect in the sidewalk, and recovered a verdict for $2,000, which the trial court set aside. There was no evidence against the property owners; they are not parties here and the case will be considered as a suit against the city.

The accident occurred shortly after 1:00 p.m. on December 15, 1945. Plaintiff and his wife lived on Smith street, about half a block from Marshall. They were on their way to the market and were walking west on the sidewalk on the north side of Marshall. Plaintiff's wife was walking about the middle of the walk and he was to her left. It was snowing at the time and had been during the morning, so that the sidewalk was covered with snow. At a point in front of No. 702 West Marshall street the plaintiff slipped and fell, with the result stated.

The city introduced no witnesses and the case was submitted to the jury on the evidence for the plaintiff, along with a view of the premises taken by the court and the jury. On this writ of error three questions were argued: (1) Whether the alleged defect was the proximate cause of the plaintiff's injury; (2) whether actionable negligence on the part of the city had been proved, and (3) whether the plaintiff was guilty of contributory negligence.

The place where plaintiff fell was a depression in the sidewalk, shaped like a saucer or shallow bowl, with a diameter of four and one-half feet, as measured from north to south and from east to west. It was four inches deep at the center, or lowest point, to which it sloped fairly gradually and uniformly from the circum-ference, as appears from the photographs introduced by the plaintiff. The south edge of the depression appears to begin at the curb and at its east side is a water or gas meter. The plaintiff indicated by a mark on a photograph that he slipped and fell at the north edge of this meter.

It was argued for the city that the plaintiff's evidence does not show that he fell at this depression or that the depression caused or contributed to his fall. It is sufficient to say on this point that the evidence adequately identifies this depression as the place where plaintiff slipped and fell, and establishes its relation to the accident as a proximate cause.

Since we are of opinion that the evidence shows that the plaintiff was guilty of negligence which contributed to his injury, it is not necessary that we decide whether the evidence was sufficient to provide a jury question on the issue of actionable negligence on the part of the city. We may say in passing that it is a very close question in this case.

In an early case, City of Richmond v. Courtney, 32 Grat. 792, 73 Va. 792, it was held that a municipal corporation is not an insurer against accidents upon its streets and sidewalks, and not every defect therein is actionable, though it may cause the injury sued for; that it is not to be expected, and ought not to be required, that a city should keep its streets perfectly even and level; that slight obstructions or depressions, in the nature of things, cannot be prevented; that 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. That principle has been reaffirmed repeatedly, City of Richmond v. McDonald, 183 Va. 694, 33 S.E. 2d 186, and such is the general rule, 25 Am. Jur., Highways, § 348, pp. 641-4.

When the defect is so slight or ordinary that no careful or prudent person would reasonably anticipate any danger from its existence, then as matter of law there is no actionable negligence. City of Roanoke v. Sutherland, 159 Va. 749, 167 S.E. 243. Applying this rule we have held that there was no liability on the city for injuries caused by a depression 3x5 feet and of a depth equal to the thickness of the bricks that had been removed, City of Richmond v. Courtney, supra; by a drain four inches deep and 18 inches to two feet wide, Charlottesville v. Failes, 103 Va. 53, 48 S.E. 511; by a depression extending 12 feet in the middle of the sidewalk, parallel to the curb, of a depth averaging three-fourths of an inch, City of Roanoke v. Sutherland, supra; by a depression two feet long, seven inches wide and averaging one inch in depth, City of Staunton v. Kerr, 160 Va. 420, 168 S.E. 326; by a depression 15 inches long, eight inches wide and one and five-eighths inches deep. Childress v. City of Richmond, 181 Va. 267, 24 S.E.2d 419.

Likewise it has been held that there was no liability in cases of slight projections, as in Richmond v. Schonberger, 111 Va. 174, 68 S.E. 284 (2 inches); City of Richmond v. McDonald, supra (five-eighths of an inch); but recoveries were sustained in Richmond v. Rose, 127 Va. 772, 102 S. E. 561, 105 S.E. 554 (maximum of two inches), and in Buck v. City of Danville, 177 Va. 582, 15 S.E.2d 31 (two inches), in which two latter cases it was said that decided cases are not very helpful but that decision must rest on the particular facts in the particular case.

As illustrating this conclusion see annotation in 119 A.L.R. at page 161, to the case of Ray v. Salt Lake City, 92 Utah 412, 69 P.2d 256, in which a great number of cases are collected, some holding that the defect was too slight or trivial to charge the municipality with negligence, and others that the question was for the jury. Cases are cited in which the same court has reached opposite conclusions on facts not readily distinguishable. See also 25 Am. Jur., Highways, § 488, pp. 774-6.

In the present case, if it be conceded that the evidence was sufficient to support the finding of the jury that the city was negligent, the plaintiff's own testimony convicted him of negligence and required that the verdict in his favor be set aside.

That evidence leaves it without question that the plaintiff was perfectly familiar with the defect which he says the citywas negligent in permitting. The cause of the defect is not shown but the evidence is that it had been there about six years. The plaintiff testified that he lived in the next block for ten years. He was questioned as to how he knew this depression was the place where he fell. He said, "I know where I seen it and I know--I have been up there--lived in that block at 606 for ten years on Marshall Street." At the time of his fall he was living within one-half block of Marshall street and quite near the scene of his fall. His wife testified that on that day they were proceeding in the usual way up Marshall street, where she had been before with her husband to bring the groceries home. Plaintiff himself testified that he had been dealing for some length of time with the market to which they were going; that this was (heir usual way of travel and that in going to the market he passed right by this place.

He further testified that he didn't know whether anybody had walked along there in the snow, because he was not paying any attention, "just walking on talking when my foot slipped." He said nobody was on the street at that time that he remembered and that there were no objects or obstructions that he had to avoid.

He was asked whether he had ever seen that place in the sidewalk before and he answered:

"A. I have seen that, yes.

"Q. Had you seen it before the day you were hurt? A. Naturally, I seen it.

"Q. I say had you seen it before that day? A. Oh, yes, sir.

"Q. In going to the market you had to pass right by it? A. Yes."

The hole in which he claimed to have stepped was in line with the treebox area along the curb, and was adjacent to the curb. The photographs show, as stated, that the inside of one of the curbstones formed the south rim of the depression. The evidence does not show the width of the sidewalk other than that it was the average, usual sidewalk, "not a small one, " the plaintiff said. It was of ample width for the plaintiff to walk on the right half and there was no person or object to prevent his doing so.

It is true that he testified that because of the snow he could not...