Price v. Travis

• Decision Date: 22 December 1927
• Citation: 140 S.E. 644
• Court: Virginia Supreme Court
• Parties: PRICE. v. TRAVIS et al.

140 S.E. 644

PRICE.

v.TRAVIS et al.

Special Court of Appeals of Virginia.

Dec 22, 1927.

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 becausecontrary 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 Co. v. Wilson, 142 Va. 468, 129 S. E. 277.

"Any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance at common law." Elliott on Roads and Streets (2d Ed.) § 644.

"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 or cause any obstruction which interferes with this right on any part of the highway, within its exterior lim its. * * * The duty of the town is to perform a positive act in the preparation and preservation of a sufficient traveled way. The duty of others is to abstain from doing any act by which any part of the highway would become more dangerous to the traveler than in a state of nature, or than in the state in which the town has left it." Dickey v. Maine Telegraph Co., 46 Me. 485.

The 4 feet 6 inches above mentioned, while part of Redgate avenue on paper, is outside of the street as laid out by the city: therefore the erection of the railing or fence by Price thereon is not a dangerous obstruction upon the surface of the street within the meaning of the rule of law last above stated, nor could it be considered as a dangerous obstruction near to the laid out street, for which the defendant was liable, because Mrs. Travis was not injured by walking into or falling over said obstruction.

Upon principle the city having only an easement for a public street in Redgate avenue, and the fee being in the...