Moore v. City Of Eichmond

• Decision Date: 13 December 1888
• Citation: 85 Va. 538,8 S.E. 387
• Parties: Moore v. City of Eichmond.
• Court: Virginia Supreme Court

8 S.E. 387

(85 Va. 538)

Moore

v.City of Eichmond.

Supreme Court of Appeals of Virginia

December 13, 1888

1. Municipal Corporations—Defective Sidewalks—Evidence.

In an action against a city for personal injuries caused by falling into a hole in a sidewalk, testimony is not admissible that one of plaintiff's witnesses fell into the same hole on the same night. ¹

2. Same—Care Required of Traveler.

Instructions that a city is bound to use reasonable care to keep its streets and sidewalks in a safe condition for travel, and that a traveler on a public street ls held to the use of only ordinary care, correctly state the law, and it is error to refuse them. ²

3. Same—Gross Negligence of Traveler.

The hole into which plaintiff fell was between, and about 80 feet from, two gas-lamps, which were lighted at the time, and by the light of which a person could see objects on the sidewalk so small as pieces of cinders. Plaintiff admitted that a person could have seen the sidewalk if he had looked at it. Held, that plaintiff was guilty of gross negligence. ²

Error to circuit court of city of Eichmond.

Edgar Allen, for plaintiff in error. C. V. Meredith, for defendant in error.

Lewis, P. This was an action of trespass on the case, in which M. J. Moore was plaintiff and the city of Eichmond was defendant. The action was brought to recover damages for injuries received by the plaintiff by falling into a hole, in the night-time, in one of the sidewalks of the city, and which it was the duty of the city to keep in repair. Issue was joined on the plea ofnot guilty, and, a verdict and judgment having been rendered for the defendant, the case, on a writ of error, was brought to this court.

1. The first question relates to the action of the circuit court in excluding certain evidence. The plaintiff, at the trial, for the purpose of proving the defective condition of the sidewalk at the place where the accident occurred, introduced a witness, John Devine, to prove that he (the witness) on the same night, fell into the same hole. But the court excluded the evidence, and, as we think, correctly. The fact sought to be proved was wholly collateral to the matter in issue, and the evidence was therefore clearly inadmissible. It is an elementary rule that the evidence must be confined to the point in issue, and hence evidence of collateral facts, from which no fair inferences can be drawn tending to throw light upon the fact under investigation, is excluded; the reason being, as Greenleaf says, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them; and, moreover, the adverse party, having had no notice of such a course of evidence, is not prepared to rebut it. 1 Greenl. Ev. § 52. The precise question was determined in Collins v. Dorchester, 6 Cush. 396. That was an action for an injury received by the plaintiff by reason of a defect in a highway, and the question was whether it was competent for the plaintiff to prove by a third person that before the injury complained of he received a similar injury at or near the same place, and from the same alleged defect, without any negligence on his part. The evidence at the trial was excluded, and this ruling was affirmed. The court said: "It was testimony concerning collateral facts, which furnished no legal presumption as to the principal facts in dispute, and which the defendants were not bound to be prepared to meet. " In a similar case in the supreme court of New Jersey it was said that it would not be competent for the plaintiff to prove that at other times other persons fell into the excavation in question, nor was it competent for the defendant to prove that other persons, at other times, when the area was in the same condition, passed the place complained of without injury. And the reason given by the court was that such evidence would necessarily lead to the trial of a multitude of distinct issues, involving a profitless waste of time, and tending to distract the attention of the jury from the real point in issue, without possessing the slightest force as proof of the matters of fact involved. Association v. Giles, 33 N. J. Law, 260. In Hubbard v. Railroad Co., 39 Me. 506, the plaintiff sued the defendant company to recover damages for certain alleged wrongful acts on the part of the defendant, whereby access from the highway in question to the plaintiff's tavern was rendered difficult; and at the trial he proved that on two occasions the carriage of travelers had been upset in attempting to pass from the highway to his house. But this evidence, on appeal, was held inadmissible. If, said the court, proof of this description should be received, then the opposing party would obviously have the right of showing that in the instances mentioned the accidents were the results of carelessness or negligence on the part of those sustaining them, and thus as many distinct issues might be raised as there were instances of carriages passing over the road, thereby diverting the attention of the jury to matters entirely collateral to the real questions in dispute. In Hudson v. Railroad Co., 59 Iowa, 581, 13 N. W. Rep. 735, the plaintiff claimed damages for an injury to a horse caused by a defective crossing over the defendant's road, and the question was whether the evidence of a witness introduced by the plaintiff was admissible, who testified that prior to the accident complained of a horse driven by him over the crossing in question got his foot between the plank and the rail, and sustained an injury similar to that for which the action was brought. The trial court admitted the evidence, but the judgment was reversed. The supreme court said: "These facts were all collateral to the main issue, and should have been excluded. If evidence of this character is receivable, contradictory proofs would be admissible, andthere would be as many collateral issues as there are collateral facts and witnesses testifying to them. " These authorities, which are only a few of many to the same effect, sufficiently illustrate the rule, and clearly show that the first assignment of error is not well taken. Indeed, we would not have considered a reference to authority on the subject necessary but for the earnestness with which the admissibility of the evidence was contended for by counsel for the plaintiff in error in the argument at the bar.

2. The next question arises upon the plaintiff's second bill of exceptions, the subject of which is the action of the court in refusing to give certain instructions which were asked for by the plaintiff, and in giving certain instructions asked for by the defendant. Those refused are as follows: "(1) The court instructs the jury that the defendant is bound to use reasonable care and precaution to keep and maintain its streets and sidewalks in good and sufficient repair to render them reasonably safe for all persons passing on or over the same, and if the jury believe from the evidence that the defendant failed to use all reasonable care and precaution to keep its sidewalk in such repair, and that the injury complained of resulted from that cause, as charged in the declaration, and that the plaintiff sustained damage thereby, without negligence on his part, then he is entitled to recover in this suit. (2) The court further instructs the jury that a traveler on the public street is held to the exercise of only ordinary care. Slight negligence, which is a want of extraordinary care, will not defeat a recovery for an injury received in consequence of a defect in a public street or highway, provided the evidence shows that the city authorities were guilty of negligence in permitting the defect to exist, and that the traveler was injured thereby, and was using ordinary care to avoid the injury. " These instructions correctly propound the law of the case, and ought to have been given. The established doctrine, as this court has repeatedly declared, is that a municipal corporation which, like the city of Richmond, is charged with the duty and provided with the means of keeping its streets and sidewalks in repair, is liable for a failure to perform this duty to the party who, without fault on his part, is injured in consequence of such failure. Nor is its duty to the public fulfilled by anything less than an active vigilance, and hence notice of a dangerous defect in one of its streets or sidewalks, which has remained unrepaired for an unreasonable length of time, will be imputed to it, which is the same in effect as actual notice. The authorities in support of these propositions are numerous. 2 Dill. Mun. Corp. § 789; Weightman v. City of Washington, 1 Black, 39; City of Chicago v. Robbins, 2 Black, 418; Barnes v. District of Columbia, 91 U. S. 540; Pom-frey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. Rep. 43; Noble v. City of Richmond, 31 Grat....