Price v. Travis

Citation140 S.E. 644
Case DateDecember 22, 1927
CourtSupreme Court of Virginia

140 S.E. 644

PRICE.
v.
TRAVIS et al.

Special Court of Appeals of Virginia.

Dec 22, 1927.


[140 S.E. 645]

Error to Circuit Court, City of Norfolk.

Action by Julia E. Travis against George W. Price and another. Judgment for plaintiff, and defendant Price brings error. Reversed and remanded.

Merrill & Machen, of Norfolk, for plaintiff in error.

L. S. Parsons and R. W. Peatross, both of Norfolk, George Read Martin, of New York City, and Harvey E. White, of Norfolk, for defendants in error.

CHRISTIAN, J. This cause involves the same record and judgment, except certain exceptions taken by the defendant Price, as that of the City of Norfolk v. Julia E. Travis (Va.) 140 S. E. 641, the opinion in which case was delivered to-day; 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, 60 feet wide, had been laid out and improved throughout its southern width in the block where the accident happened except upon its south side 4 feet 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 4 feet 6 inches was part of the street on paper, but unopened in fact.

Price owned No. 509 Redgate avenue, and had erected on the grass plot along the south side of the sidewalk in front of his house a railing or fence 18 inches high, consisting of 11/4 inch gas pipe driven into the ground at each end for posts with a rail of same pipe attached to the top of the posts. This railing or fence had been built about 18 months prior to the accident, and was to protect the grass upon that portion of the paper street included in his lot.

On the evening of the 26th day of October, 1925, the top rail of this railing or fence became detached in some manner from its supports and fell across the sidewalk. About 8 o'clock that evening Mrs. Travis, who was walking in a westerly direction along the sidewalk, stepped upon this pipe, fell, and was painfully injured. She brought her action for damages for her injuries thus received against Price and the city of Norfolk, and recovered a joint judgment against both defendants for $1,500.

It developed in the progress of the trial, especially when the learned judge was called upon to instruct the jury, that there was a sharp difference of opinion among the parties as to the legal liability of the defendants for the injury of the plaintiff, and separate exceptions were taken, which made the severance of the case necessary in this court.

The defendant Price excepted to all the instructions given for the plaintiff and his codefendant, and to the refusal of the court to set aside the verdict of (he jury because

[140 S.E. 646]

contrary to the law and the evidence. He also excepted to the action of the court in refusing to give the three instructions asked by him.

This case was tried so far as Price was concerned upon the principle of law that the erection and maintenance of the railing or fence upon the unopened part of Redgate avenue was a public nuisance and therefore he was an insurer of the safety of travelers upon the sidewalk. This was the effect of instruction 2 given for the plaintiff. So that the questions for our consideration are: Was this railing or fence a nuisance at common law; and, if so, was the danger such as a reasonably prudent person would have anticipated as the natural and probable result thereof?

The particular question presented by this record has never been decided by any court so far as we are advised, and it is certainly a case of first impression in Virginia, hence it will be necessary to state some of the rules of law in regard to highways, that proper deductions may be made therefrom. The basic rule of law on this subject, from which all others flow, is thus stated in the case of City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345:

"It is well settled that public highways, whether they be in the country or in a 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 pertain extent is conferred by the Legislature of the state upon the cities and towns thereof.

The 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 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. Nevertheless the 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." Appalachian Power...

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23 practice notes
  • In re Bundick, Bankruptcy No. 02-75994-SCS.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • December 17, 2003
    ...Va. 367, 372, 397 S.E.2d 832, 835 (1990). It must prevail "at all times and under all circumstances." Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927). More than sporadic or isolated conditions must be shown and the interference must be "substantial." City of Newport News v. Hert......
  • RGR, LLC v. Settle, Record No. 130633.
    • United States
    • Virginia Supreme Court of Virginia
    • October 31, 2014
    ...more dangerous than in a state of nature or in the state in which it has been left.”) (emphasis added); Price v. Travis, 149 Va. 536, 542, 140 S.E. 644, 646 (1927) (observing that the “duty of others is to abstain from doing any act by which any part of the highway would become more dangero......
  • The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...times is to restrict its use to such things as are nuisances at all times and under all circumstances.” Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927). The trial court’s order is too broad and improperly expresses its judgment in terms that can only be interpreted as a holding ......
  • Wyatt v. Chesapeake & Potomac Tel. Co. Of Va.
    • United States
    • Virginia Supreme Court of Virginia
    • March 24, 1932
    ...which the court may declare sufficient to constitute a public nuisance is a question of fact for the jury." Price v. Travis, 149 Va. 536, 140 S. E. 644, 647, 56 A. L. R. 209; Allison v. Fredericksburg, 112 Va. 243, 71 S. E. 525, 48 L. R. A. (N. S.) 93. Other Virginia cases might be cited, b......
  • Request a trial to view additional results
22 cases
  • In re Bundick, Bankruptcy No. 02-75994-SCS.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • December 17, 2003
    ...372, 397 S.E.2d 832, 835 (1990). It must prevail "at all times and under all circumstances." Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927). More than sporadic or isolated conditions must be shown and the interference must be "substantial." City of Newport N......
  • RGR, LLC v. Settle, Record No. 130633.
    • United States
    • Virginia Supreme Court of Virginia
    • October 31, 2014
    ...more dangerous than in a state of nature or in the state in which it has been left.”) (emphasis added); Price v. Travis, 149 Va. 536, 542, 140 S.E. 644, 646 (1927) (observing that the “duty of others is to abstain from doing any act by which any part of the highway would become more dangero......
  • Wyatt v. Chesapeake & Potomac Tel. Co. Of Va.
    • United States
    • Virginia Supreme Court of Virginia
    • March 24, 1932
    ...the court may declare sufficient to constitute a public nuisance is a question of fact for the jury." Price v. Travis, 149 Va. 536, 140 S. E. 644, 647, 56 A. L. R. 209; Allison v. Fredericksburg, 112 Va. 243, 71 S. E. 525, 48 L. R. A. (N. S.) 93. Other Virginia cases might be cited, bu......
  • Anton v. St. Louis Pub. Serv. Co., No. 31850.
    • United States
    • United States State Supreme Court of Missouri
    • May 17, 1934
    ...the old sidewalk and the curb, firmly imbedded in concrete. Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54, 61 A.L.R. 242; Price v. Travis, 140 S.E. 644, 56 A.L.R. 209; City of Norfolk v. Travis, 140 S.E. 641, 56 A.L.R. 214; Oliver v. Denver, 13 Colo. App. 345, 57 Pac. 729. (c) And no matter w......
  • Request a trial to view additional results
1 books & journal articles
  • The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...times is to restrict its use to such things as are nuisances at all times and under all circumstances.” Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927). The trial court’s order is too broad and improperly expresses its judgment in terms that can only be interpreted as a holding ......

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