Noble v. City of Richmond

• Decision Date: 09 January 1879
• Citation: 72 Va. 271
• Court: Virginia Supreme Court
• Parties: NOBLE & wife v. THE CITY OF RICHMOND.

72 Va. 271

NOBLE & wife v. THE CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

January 9, 1879

1. A municipal corporation, which, by its charter, has the power to lay out, improve, light, and keep its streets in order, is liable in damages at the suit of an individual who sustains injuries by reason of the neglect of said corporation to keep its streets in a proper and safe condition.

2. This rule applies to municipal corporations proper; but quæ re if it applies to quasi corporations, such as counties, townships, and New England towns, unless they are so declared to be liable by some statute.

3. The grant of power, in the charter of a city, to the council, to lay out, improve, light, & c., its streets, is a grant to the corporation, and is of such a character as to prevent its exercise by any other person or body.

4. The action cannot be maintained solely on the defect or want of repairs in the street or sidewalk, but the plaintiff must allege and prove that the corporation had notice of such defects, (which notice may be implied), and that he was injured either in person or property in consequence of such defects in such street or sidewalk.

This was an action of trespass on the case, brought in the circuit court of the city of Richmond, by William M. Noble and Olivia E., his wife, against the City of Richmond for alleged injuries sustained by said Olivia E. by falling in a hole in the sidewalk of one of the streets of the city. The declaration was as follows:

In the circuit court of the city of Richmond--Hon. Beverly R Wellford, judge--April rules, 1874:

William M. Noble and Olivia E. Noble, his wife, plaintiffs, complain of the City of Richmond, Virginia, defendant, who has been duly summoned, & c., of a plea of trespass on the case for that whereas the defendant before and on the 12th day of December, 1873, was a municipal corporation, chartered by the legislature of Virginia, clothed with the powers incident to its charter as a city, and subject to all the duties and liabilities incident to such charter, and thereby it became and was, among other duties of said defendant, the duty of the defendant to keep in good repair and fit for the use of the public generally, and the plaintiff in particular, all of its public streets and sidewalks which it allowed to remain open to the use of the public, and to keep sound, safe and serviceable for public use and travel all its pavements foot-ways and sidewalks, and particularly the sidewalk or pavement on the westermost side of Second (2d) street between Franklin and Main streets, opposite the house of one Marian Anderson, in the city of Richmond, Virginia, aforesaid, in which said highway there now is, and for a long time before, and on the day and year aforesaid there was a certain hole opening into a cellar or vault belonging to said Marian Anderson, to-wit: at Richmond, Virginia, of all which the said defendant, long before the day and year aforesaid, had notice. Yet the said defendant, well knowing the premises, although bound as aforesaid to keep said highway in safe condition and repair for the use of the public and the plaintiff, on the day and year aforesaid, disregarding its duty in the premises, did not so keep the same in good repair, but on the contrary wilfully, negligently, wrongfully and unjustly permitted said hole to be and continue, and the same was then and there so badly, insufficiently and defectively covered or protected that by means of the premises, and for want of proper covering or railing to said hole or area, the plaintiff, Olivia E. Noble, who was then and there passing in and along said highway, then and there necessarily and unavoidably slipt and fell into said hole, and thereby the right shoulder and the left shoulder of the plaintiff, Olivia, were badly dislocated, and she, the plaintiff, became and was sick, sore, lame, diseased and disordered, and so remained from thence hitherto, during all which time she thereby suffered and underwent great pain, and was prevented from attending to and transacting her necessary and lawful business, and was also, by means of the premises, forced and obliged to pay, lay out and expend, and did pay, lay out and expend a large sum, to-wit: $100, in and about the endeavoring to get healed and cured of said wounds, sickness and disorder, to-wit: at Richmond, Virginia; and the said plaintiffs aver that said hole or area had been so open upon said highway unprotected, and unfenced, and uncovered for many years prior to the day and year aforesaid, and that the defendant had notice of the same, and that it was a dangerous hole, but the defendant, although well informed thereof, and having had notice thereof for a long time, wilfully and negligently permitted the same to remain unprotected, uncovered and unfenced until the occurrence of the accident aforesaid on the day aforesaid, to-wit: at Richmond, Virginia. Wherefore the plaintiffs say that they are injured and have sustained damage to the amount of $5,000, and therefore they sue.

CHAS. A. ROSE,

)

) p. q.

H. A. & J. S. WISE, )

The City of Richmond demurred to the declaration, and also pleaded not guilty. And on the hearing of the cause the court sustained the demurrer, and rendered a judgment for the defendant. And thereupon the plaintiffs applied to this court for a writ of error; which was awarded.

John S. Wise and James Lyons, Jr., for the appellants.

Keiley, for the appellee.

OPINION

ANDERSON, J.

This case is brought up upon a demurrer to plaintiffs' declaration, and raises the question as to the civil liability of municipal corporations for injuries to private persons caused by defective and unsafe streets and sidewalks.

The City of Richmond--the defendant--is a municipal corporation, chartered by an act of the legislature of Virginia. Among the many important powers vested by the charter in the council is the power over the streets and public alleys of the city--to close or extend, widen or narrow, lay out and graduate, pave and otherwise improve them; to have them properly lighted and kept in good order. They may build bridges in and culverts under the streets, and may prevent or remove any structure, obstruction, or encroachment over or under or in a street or alley or any sidewalk thereof. And they are invested with power to prevent the cumbering of streets, avenues, walks, public squares, lanes, or bridges in any manner whatever.

The grant of these powers to the city council is a grant to the corporation; (16 New York R., p. 161, opinion of Selden, J., in West v. The Trustees of the Village of Brockport, in note; ) and the grant to the corporation is of a character to exclude its exercise by any other. The city corporation, by its charter, has the exclusive power to keep the streets and sidewalks in repair and safe condition; and if they neglect to do it there is no other who has the power to do it, and so it will not be done at all. The terms of the grant, therefore, imply a duty on the part of the defendant to keep the streets and sidewalks of the city in good order and safe condition. And so, " where the duty to repair is not specifically enjoined, and an action for damages, caused by defective streets, is not expressly given, (it is said, 2 Dillon on Municipal Corporations, § 789, p. 917, ch. 23,) still both the duty and the liability, if there be nothing in the charter or legislation of the state to negative the inference, has often, and in our judgment properly, been deduced from special powers conferred upon the corporation to open, grade, improve, and conclusively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal to enable it to discharge this duty."

The means to perform the duty of maintaining the streets in a safe condition by authority to levy taxes, or impose local assessments, is conferred upon the defendant by its charter. If this view is correct it is undoubtedly a duty devolving upon the corporation of Richmond City--the defendant--to keep its streets and sidewalks in repair and in safe condition. If it neglects to keep any of them in repair and in safe condition, by reason whereof private persons without fault on their part have...