Mccrorey v. Garrett

• Decision Date: 10 June 1909
• Citation: 109 Va. 645,64 S.E. 978
• Parties: McCROREY. v. GARRETT.
• Court: Virginia Supreme Court

64 S.E. 978

(109 Va. 645)

McCROREY.

v.GARRETT.

Supreme Court of Appeals of Virginia.

June 10, 1909.

1. Highways (§ 80^*)—Rights of Public— Control.

Public highways, whether in the country or in the city, belong entirely to the public at large, both as to the surface and to the portion above and below it, and the supreme control over them is in the Legislature.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 288, 290; Dec. Dig. § 80.*]

2. Highways (§ 153*) — Obstruction in Highway—Nuisance.

An unauthorized obstruction, which unnecessarily impedes or incommodes the lawful use of a highway, is a nuisance at common law.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 299, 417, 419; Dec. Dig. § 153.*]

3. Municipal Corporations (§ 693*)—Awning over Street—Liability of Owner fob Injury.

Unless justified by legislative authority, the owner of an awning, maintained over a public street, becomes an insurer as to persons lawfully using the street, maintaining the awning at his own peril, and a person injured thereby while free from blame may recover from the owner, regardless of the owner's negligence in its construction and maintenance.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1494; Dec. Dig. § 693.*]

4. Evidence (§ 576*)—Evidence at Former Trial—Absence of Witness.

The absence upon a second trial of a witness who testified in the former trial, caused by sickness, is not ground for admitting the stenographic report of his testimony in the former trial; but a continuance should be asked if his testimony is material.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2401-2405; Dec. Dig. § 576.*]

Appeal from Law and Chancery Court of City of Norfolk.

Action by A. E. Garrett against J. G. Mc-Crorey. Judgment for plaintiff, and defendant appeals. Affirmed.

M. R. Peterson and Thos. H. Willcox, for appellant.

Starke, Venable & Starke, for appellee.

HARRISON, J. This action was brought by A. E. Garrett to recover of J. G. Mc-Crorey damages for injuries sustained by him from the falling of an awning which was maintained by the defendant over the pavement in front of his store on Main street in the city of Norfolk.

The record shows that the defendant was the lessee of a storehouse situated on the north side of Main street, in the city of Norfolk, in which he conducted a mercantile business. On the front of said store he had erected an adjustable awning, called "Coyle's frame, " 50 feet in length and weighing 250 pounds. The flaps of the awning were elevated above the street 7 feet, and the awning when lowered projected from the building over the sidewalk about 5 feet. On the day of the accident, a high wind was blowing, and, as the plaintiff was walking along the north side of Main street, the awning fell and struck him, causing the injuries complained of.

The trial resulted in a verdict and judgment for $2,000, which we are asked to review.

The first assignment of error is that the lower court improperly overruled the defendant's demurrer to the first count of the declaration. The second assignment of error is that the court refused to grant for the defendant an instruction which is set out in bill of exceptions No. 3. The third ground of objection is to the action of the court in giving for the plaintiff an instruction which is set out in bill of exceptions No. 4.

These three assignments of error involve but one question, and they will therefore be considered together. The question presented by each is whether or not a person maintaining a movable awning in front of his place of business in a city owes the duty of safety to the public using the street, and is liable to a person who, without fault on his part, is injured by its fall, regardless of the care or skill observed in its construction and maintenance; in other words, that the test of liability is not the lack of proper care on the part of the owner of the awning, but the fact of resulting injury, through no fault of his, to the party using the street.

It is well settled that public highways, whether they be in the country or in the city, belong, not partially, but entirely, to the public at large, and that the supreme control over them is in the Legislature. It is also an established general rule that any unauthorized obstruction which unnecessarily impedes or incommodes the lawfulness of a highway is a nuisance at common law. City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345.

So far as the right of the public to travel unmolested over the highway is concerned, the dominion of the people is absolute, and is not confined to obstructions on the surface of the street, but extends with equal emphasis to encroachments upon the public right either below or above the surface. Indeed, an obstruction above the street that may injure the traveler is more dangerous than one on the ground, because the latter is more readily seen and avoided.

In Wood on Nuisances (3d Ed.) vol. 1, § 275, the principle governing cases of this nature is stated as follows: "As has been previously stated, every person in traveling upon a public street has a right to absolute safety, while in the exercise of ordinary care, against all accidents arising from obstructions of or imperfections in the street, and this applies as well to what is in the street as to what is over it." Further this author says: "It would seem that all signboards, cornices, blinds, awnings, and other things projecting over a walk, or so situated with reference thereto that if they fall they may do injury to travelers, are nuisances unless so secured as to be absolutely safe, and the person maintaining them is liable for all injuries arising therefrom except such as are attributable to inevitable accident."

In Elliott on Roads and Streets, § 647, it is said: "It is not necessary, in order to constitute a nuisance, that there should be an actual physical obstruction to the...