Richmond Bridge Corp. v. Priddy

• Decision Date: 11 September 1936
• Citation: 187 S.E. 518
• Parties: RICHMOND BRIDGE CORPORATION et al. v. PRIDDY.
• Court: Virginia Supreme Court

187 S.E. 518

RICHMOND BRIDGE CORPORATION et al.

v.PRIDDY.

Supreme Court of Appeals of Virginia.

Sept. 11, 1936.

HUDGINS, J., dissenting.

Error to Law and Equity Court, Part 2, of City of Richmond.

Action by Raymond B. Priddy, Jr., who sues by his next friend, against the Richmond Bridge Corporation and others. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Argued before CAMPBELL, C, J., and. HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

Edwards & Davenport, of Richmond, for plaintiff in error.

Thomas A. Williams and L. C. O'Connor, both of Richmond, for defendants in error.

GREGORY, Justice.

This writ of error grew out of an injury suffered by an infant, five years old, who fell into an excavation made by the defendants in constructing the new James river bridge across James river from South Richmond to North Richmond. The plaintiff below was awarded $2,500 damages by a jury and the court pronounced judgment thereon. The parties will be referred to according to their respective positions in the court below.

The northern terminus of the bridge is on certain property which belongs to the city of Richmond and which is known as Riverside Park. The park was, and had been, used as a children's playground for many years. The excavation into which the child fell was under the bridge. It was approximately twenty feet deep and some fifteen feet wide. It extended some three or four feet into Riverside Drive which ran through the park and under the bridge. At the point of accident the driveway was being reconstructed and its elevation lowered, but the outside line of the street on the side where the hole or excavation encroached was not materially changed.

The city of Richmond had given the defendant, Richmond Bridge Corporation, permission to use so much of the park as was necessary for constructing the bridge. The plaintiff was injured on that part of the property which was being used for that purpose. Children were frequently playing in the park and sometimes close to the construction work. This fact was known or should have been known to the defendants. The defendants provided no danger or warning sign of the excavation and placed no guard or barricade aroundit. There were piles of dirt several feet high in the driveway but pedestrians used it daily. The testimony shows that children very frequently passed the excavation on the driveway. At certain points on other streets near by and leading to the bridge barricades had been erected to prevent vehicular traffic from going on the bridge but no notice whatever had been given to pedestrians that the drive-way or the park had been closed to them.

It became necessary to reinforce one of the pillars of the bridge which was near the driveway and the excavation already described was dug next to the pillar for that purpose. Concrete had been poured and the reinforcement completed but the hole had been left open about four weeks in order that the concrete could dry. Raymond Priddy, the five year old plaintiff and his little companion were playing in the park in the early afternoon. They went over to the piles of dirt which were in the driveway and while his companion waited in the wagon Raymond went too close to the excavation and fell into it. He was seriously injured.

The plaintiff founds his claim upon the proposition that he was playing in a public park and public street where he had a right to be and while there he fell into an unguarded excavation and received his injury; that the defendants knew that children played in the park and close to the excavation which they had allowed to remain open for some four weeks, yet, they failed to barricade the opening or warn the children of the danger, and that the city had not by ordinance or otherwise lawfully closed the park as a playground or the street to pedestrians.

The defendants say that the city by ordinance permitted them to use so much of the park as was reasonably necessary for the purpose of constructing the bridge and that the public had no right to use such portions as was necessary for said work; that the plaintiff was injured in that portion of the park which had been set apart to the defendants for construction purposes and therefore he was a trespasser; that being a trespasser they did not owe him the duty of ordinary care to prevent him falling in the excavation. They further say that the proximate cause of the plaintiff's injury was his own voluntary act and not their failure to warn him or to barricade the excavation; that the failure to have barricades had no con nection with plaintiff's injury and that the unfinished condition of the street, the piles of dirt in the street, the building materials scattered around were sufficient to put the public on notice of the dangers incident to the construction work, and, finally, that a landlord is not required to keep his premises safe for the uninvited, whether they be adults or infants.

If the plaintiff was a trespasser on the property at the time he received his injury, then he would not be entitled to recover, for in Virginia it is reasonably well settled that the owner of...