Price v. Travis

• Decision Date: 22 December 1927
• Citation: 149 Va. 536
• Parties: GEORGE W. PRICE v. JULIA E. TRAVIS AND CITY OF NORFOLK.
• Court: Virginia Supreme Court

Page 536

149 Va. 536

GEORGE W. PRICE v. JULIA E. TRAVIS AND CITY OF NORFOLK.

Supreme Court of Virginia, Richmond.

December 22, 1927.

1. STREETS AND HIGHWAYS — Control of Legislature over Streets and Highways — Control of Municipalities. — 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. This plenary power over the streets to a certain extent is conferred by the legislature of the State upon the cities and towns thereof.

2. STREETS AND HIGHWAYS — Acceptance of Street by City — City Paving and Building Sidewalks on Only Portion of Street. — Cities are given the power to lay out streets of a reasonably safe width for travel, and accept and open for public use dedicated or paper streets throughout part or throughout their entire width in the exercise of their governmental discretion. They may pave such portions thereof and build sidewalks in such streets of such width as they consider to the best interest of the public.

3. STREETS AND HIGHWAYS — Street as Accepted Becomes a Public Highway — Liability for Dangerous Obstructions. — A street throughout its entire width as accepted or laid out becomes a public highway and the law forbids any person, or corporation, to place or maintain any dangerous obstruction in any portion of a road (street) which has been dedicated to and is being used for public travel.

4. STREETS AND HIGHWAYS — Right of Traveler to use all parts of Street — Obstructions. — Any part of the highway may be used by the traveler, and in such direction as may suit his convenience or taste. No private person has a right to place any obstruction which interferes with this right on any part of the highway within its exterior limits.

5. STREETS AND HIGHWAYS — Abutting Owners — Erection of Fence on Plot which is on Paper Part of Street, but not on the part of the Street Paved and Accepted — Case at Bar. — Defendant erected a fence in front of his house on the edge of the sidewalk on part of the street left unappropriated and unused for public purposes, which so far as the physical condition showed was no part of the street, but in possession of the lot owners as part of their lots. The fence being outside of the street as laid out by the city was not a dangerous obstruction upon the surface of the street within the meaning of the rule forbidding such obstructions, nor in the instant case could it be considered as a dangerous obstruction near to the laid out street, for which defendant was liable, because plaintiff was not injured by walking into or falling over the obstruction, but by stepping on the top rail of the fence which had fallen or been placed on the sidewalk.

6. STREETS AND HIGHWAYS — Abutting Owners — Liability of Abutter Who Renders a Street Hazardous. — Although a city has only an easement for a public street, the fee being in the abutting owners, and only a portion of that easement has been accepted by the city, still a property owner of the abutting lot, or any other person, cannot do any act which renders the use of a street hazardous or less secure than it was left by the municipal authorities.

7. STREETS AND HIGHWAYS — Abutting Owners — Liability as Insurer — Things under the Surface of the Street or Sidewalk. — An adjoining owner who builds such things under the surface of the sidewalk or street as areaways, hatchways, coal holes, etc., that are inherently dangerous unless properly protected by safe guards and covers, does so at his peril, and the adjoining owner must at all times maintain them in such condition as to insure the safety of travelers upon the street.

8. STREETS AND HIGHWAYS — Abutting Owners — Liability as Insurer — Objects Suspended Over or Near Street. — An abutting owner who erects objects suspended over or near a street, such as awnings, poles, cornices, window shutters, etc., that falling onto the street or sidewalk might injure a traveler, does so at his peril, and the abutting owner must at all times maintain them in such condition as to insure the safety of travelers.

9. STREETS AND HIGHWAYS — Abutting Owners — Liability as Insurer — Objects Suspended Over or Near Street — Limitation of Rule. — The rule that an abutting owner is liable as insurer of the safety of a sidewalk or street is not to be extended beyond owners and occupiers of buildings whose structures overhang the sidewalk.

10. NUISANCES — Nuisance Per Se — Structures Overhanging Streets or Highways. — To constitute a structure overhanging a street or highway a public nuisance, the first essential is that the thing or structure is without legislative authority. No authority is necessary for the owner to erect buildings or other things upon his premises, provided he does not injure others.

11. NUISANCES — Streets and Highways — What is a Public Nuisance — Questions of Law and Fact. — What is a public nuisance is a question of law for the court, but the existence of facts which the court may declare sufficient to constitute a public nuisance is a question of fact for the jury.

12. NUISANCES — Nuisance Per Se — Streets and Highways. — While there is some confusion as to the meaning of the term nuisance per se, the tendency of modern times is to restrict its use to such things as are nuisances at all times and under all circumstances. The essential characteristic of a public nuisance is that the thing imperils the safety of a public highway. The obstruction or thing must be dangerous and hazardous in itself, and it must be constructed and maintained so as to insure absolute safety from injury by its falling or travelers breaking through its guards or coverings. This doctrine has been carried to the extent that coverings or fixtures may be rendered unsafe without the knowledge of the owner, or by the wrongful acts of others, and this would be no defense to his liability.

13. STREETS AND HIGHWAYS — Public Nuisance — Fence Along a Sidewalk — Case at Bar. — In the instant case plaintiff was injured when she stepped on a rail which had fallen to the sidewalk from the fence of an abutting owner or been placed on the sidewalk. As a matter of law the fence could not be declared a public nuisance, as it was not in any sense dangerous or hazardous and similar structures are common along sidewalks in many places in cities. Although conceded that the fence was an enclosure of public property that ought to have been open and free, therefore in law a purpresture, that fact did not make it a nuisance.

14. STREETS AND HIGHWAYS — Public Nuisance — Fence Along Sidewalk — Proximate Cause — Plaintiff Stepping on Rail of Fence which had Fallen onto the Sidewalk. — In the instant case plaintiff was injured when she stepped upon the top rail of a fence which had fallen or been placed upon the sidewalk in front of defendant's house. Plaintiff was not injured by the rail falling upon her, but it fell or was placed across the sidewalk, causing an unsafe street. In other words, the construction and maintenance of the fence was not the proximate cause of plaintiff's injury, but an independent supervening force apparently, without the knowledge of the defendant, caused the unsafeness of the sidewalk, from which the injury resulted.

Held: That defendant was not liable.

15. STREETS AND HIGHWAYS — Rail or Fence of Abutting Owner Falling Upon Sidewalk — Liability of Abutting Owner as Insurer — Case at Bar. — A dedicated public street was laid out and improved except upon the south side where between the edge of the sidewalk and the property line of the abutting owners four feet and a half was left unappropriated and unused for public purposes, and so far as the physical condition showed, was no part of the street, but in possession of the lot owners as part of their lots. Defendant erected in front of his house along the south side of the sidewalk on this grass plot a rail fence. The top rail of this fence became detached in some manner and fell across the sidewalk on the evening of the day of the accident. That evening the plaintiff walking upon the sidewalk stepped upon this rail, fell and was painfully injured. The case was tried as to defendant on the theory that the erection and maintenance of the fence was a public nuisance, and, therefore, he was an insurer of the safety of travelers upon the sidewalk. This was the effect of an instruction given for the plaintiff.

Held: That the instruction which told the jury that the defendant was liable as an insurer was erroneous.

Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Merrill & Machen, for the plaintiff in error.

L. S. Parsons, R. W. Peatross, George Read Martin, and Harvey E. White, for the defendants in error.

CHRISTIAN, J., delivered the opinion of the court.

This cause involves the same record and judgment, except certain exceptions taken by the defendant Price, as that of the City of Norfolk against Julia E. Travis, ante, page 523, 140 S.E. 641, the opinion in which case was delivered today; therefore it will be necessary to set out herein only such of the facts proven at the trial as will aid in an intelligent discussion of the errors assigned by the defendant Price.

Redgate avenue, a dedicated public street of the city of Norfolk, sixty feet wide, had been laid out and improved throughout its southern width, in the block where the accident happened, except upon its south side four (4) feet six (6) inches thereof, between the southern edge of the sidewalk and the property line of the lots abutting thereon, was left unappropriated and unused for public purposes, and so far as the physical conditions showed, was no part of the street, but in possession of the lot owners as part of their lots. In other words this four (4) feet six (6) inches was...