Town of Va. Beach v. Starr, 3936

• Decision Date: 10 September 1952
• Docket Number: No. 3936,3936
• Citation: 194 Va. 34,72 S.E.2d 239
• Court: Virginia Supreme Court
• Parties: TOWN OF VIRGINIA BEACH, A MUNICIPAL CORPORATION v. NAOMI TRUSTIN STARR. Record

Page 239

72 S.E.2d 239

194 Va. 34

TOWN OF VIRGINIA BEACH, A MUNICIPAL CORPORATION v. NAOMI TRUSTIN STARR.

Record No. 3936.

Supreme Court of Appeals of Virginia

September 10, 1952.

Kellam & Kellam and Roy Smith, for the plaintiff in error.

Ashburn, Agelasto & Sellers, for the defendant in error.

JUDGE: WHITTLE

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

This appeal involves a judgment recovered by Naomi Trustin Starr against the Town of Virginia Beach for personal injuries alleged to have been sustained by Mrs. Starr while walking along a public sidewalk in the town. The court overruled the motion of the defendant to set aside the verdict of the jury and entered judgment thereon, and we granted the defendant a writ of error.

The evidence disclosed that on April 8, 1950, about two p.m., Mrs. Starr, while walking north on the western sidewalk on Atlantic avenue abreast of her daughter, Mrs. Sacks, and a companion, Mrs. Berlin, fell and was injured. The day was bright and sunny and the walk was dry.

The sidewalk, constructed of concrete, is ten feet wide. An expansion joint runs down the center of the walk, and other expansion joints projecting right and left from the center joint cut the concrete walk into blocks five feet square. At a point where two of these lateral joints intersect the center joint there was a shallow crevice apparently caused by the spreading of the center expansion joint. The evidence disclosed the crevice to be from one to two inches deep and from one inch to an inch and a quarter in width.

The three members of the party testified that they saw the 'defect' in the sidewalk before they reached it. Mrs. Starr testified on cross-examination:

'A. Yes. I saw the break in the sidewalk.

'Q. You saw it?

'A. I certainly did.

* * *

'A. * * * I was walking along here and I saw this bad place, and with my right foot I stepped up on this block thinking it was safer to do so, and due to the elevation of the concrete, * * * my foot slipped in this hole, this shallow place, and it pivoted and me and my whole body pitched forward. I lost my balance and down I went.

* * *

'Q. You say you realized it was dangerous?

'A. Yes.'

There were three pictures introduced in evidence, two of which were taken by Mrs. Sacks immediately after the accident. These exhibits show the expansion joint running north and south in the center of the sidewalk, leaving a five-foot smooth walking surface on each side of the alleged defect.

It was admitted that the condition of the sidewalk had obtained for more than five years and that no accident or injury had occurred at the location before the fall of the plaintiff nor had any report been made that the condition of the sidewalk was dangerous.

Several assignments of error are relied upon: First, the town strongly contends that no negligence on its part has been shown; second, that the plaintiff was guilty of contributory negligence as a matter of law; and third, that the court erred in its instructions to the jury.

As we view the case, it is not necessary for us to decide whether or not any negligence has been proven on the part of the town or whether or not the instructions were erroneous.

We hold that Mrs. Starr was guilty of contributory negligence as a matter of law which bars her recovery.

The evidence is without dispute that the condition of the sidewalk was open and obvious to anyone. The condition was certainly obvious to Mrs. Starr. She admits that she saw the 'defect' and recognized it as a dangerous place. There was a smooth surface five feet on each side of the defect, where she could have walked in safety, yet she chose to undertake to walk over the 'dangerous' crevice. Then her foot slipped, causing her to fall.

We have repeatedly held that where a defect is open and obvious to persons using a sidewalk it is their duty to observe the defect. Where there is no excuse for not seeing the defect one cannot recover. South Norfolk v. Dail, 187 Va. 495, 47 S.E. (2d) 405.

In City of Staunton v. Kerr, 160 Va. 420, 425, 426, 168 S.E. 326, we approved the quotation from Lerner v. Philadelphia, 221 Pa. 294, 70 A. 755, 21 L.R.A. (N.S.) 614:

'When one abandons the use of his natural senses for the time being, and chooses to walk over a pavement by faith exclusively, and is injured because of some defect in the pavement, he has only himself to blame. It is, of course, the duty of municipalities to see that the pavements along its streets are...