Tripp v. City Of Norfolk

• Citation: 106 S.E. 360
• Parties: TRIPP. v. CITY OF NORFOLK.
• Decision Date: 17 March 1921
• Court: Virginia Supreme Court

106 S.E. 360

TRIPP.

v.CITY OF NORFOLK.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Error to Circuit Court of City of Norfolk.

Action by Queenie Tripp against the City of Norfolk. Demurrer to declaration sustained, and plaintiff brings error. Reversed and remanded.

H. C. Nicholas and L. S. Parsons, both of Norfolk, for plaintiff in error.

R. W. Peatross, of Norfolk, for defendant in error.

SAUNDERS, J. This case is brought before us by a writ of error to a judgment of the circuit court of the city of Norfolk, sustaining a demurrer to the declaration of Queenie Tripp, plaintiff in an action of assumpsit against said city.

The plaintiff was injured on Holt street in the city, supra, under the following circumstances: She was walking on the sidewalk of said street when a heavy automobile fire truck traveling in her direction dropped Its front wheel or wheels into a rut in the street. The force of this impact detached a front wheel of the truck from the axle. The wheel thus detached rolled forward, mounted the sidewalk, struck Miss Tripp, and inflicted injuries alleged to be of considerable severity.

The plaintiff's case is set out in detail in her declaration, which herewith follows:

"Queenie Tripp, plaintiff, complains of the city of Norfolk, a municipal corporation duly chartered and created under the laws of the state of Virginia, defendant, of a plea of trespass on the case for this, to wit:

"That heretofore, to wit, on and before the grievance here complained of, the city of Norfolk was a municipal corporation duly chartered and created under the laws of the state of Virginia, and as such a corporation, at the time of the grievance hereinafter mentioned, was clothed with the power and subject to the duty, among others, of keeping sound, safe, and serviceable for public use and travel its public streets, alleys, walks, and gutters, and particularly it was the duty of the defendant to keep sound, safe, and serviceable for public use and travel a certain public street in said city, known and designated, as Holt street, in order that persons using the said Holt street for travel might not be injured. And also at the time of the grievance herein mentioned the defendant was the owner of certain trucks and apparatus, used and operated by the defendant for the purpose of extinguishing fires, and more particularly a certain fire apparatus, the same being a heavy and powerful automobile truck and more particularly designated as combination No. 1, which said combination wagon No. 1 was operated over and upon the public streets of the defendant en route to and returning from fire, and more particularly the said combination wagon was operated over and upon the said Holt street in said city en route to and returning from fires in that section of said city.

"And yet the said defendant, disregarding its duty as aforesaid, willfully, negligently, and unjustly permitted and allowed the said Holt street to become in a dangerous and unsafe condition, in that the said defendant, before and at the time of the grievance herein mentioned, suffered, permitted, and allowed a certain rut or defect to be in said street, the same extending about ten feet across the said Holt street, about two feet in width and about eight inches deep, the same being located on the said Holt street at or near the intersection of another public street in said city known and designated as Chapel street; and the said rut or defect is particularly dangerous, in that the same is situated in the said Holt street at such an angle that persons traveling along the said Holt street in vehicles in the nighttime were unable to see or ascertain the dangerous character of said rut until within such close proximity to the same that striking the same was unavoidable, of all of which the said city then and there had notice, or by the exercise of reasonable care should have had notice. And on or about the 5th day or February, 1919, at about the hour of 10 o'clock p. m., the said combination wagon was being operated over and upon the said Holt street, and, though operated with reasonable care, the same was brought violently, suddenly, and with great force against the said rut or defect, and by reason of the force and violence of the contact, and the dangerous condition of said rut and its liability to damage and injure traffic over the same, one of the front wheels of the said combination wagon became detached and wrenched therefrom, and by reason of the momentum created by the forward movement of the said combination wagon, the said wheel, after having become detached and wrenched from the said combination wagon, was propelled with great force and speed over, upon, and along the said Holt street and also up on and upon the sidewalk of the said Holt street, where the plaintiff was then and there, in the observance of due care on her part, lawfully walking, and, continuing its progress, did with great force and violence crash into and against the plaintiff, by reason whereof the plaintiff was knocked violently to the ground and greatly sprained, bruised, cut, and maimed, and her nervous system g»eatly shocked and permanently disordered and otherwise permanently injured, to the damage of the plaintiff in the sum of $3,000, and therefore she brings this suit."

The defendant city demurred to this declaration, and assigned the following grounds of demurrer:

"First. That the declaration shows on its face that the condition of the street complained of was not the proximate cause of the plaintiff's injury.

"Second. That the declaration shows on its face that the injury complained of was not the natural and probable result of the condition of the street, and could not have been foreseen and guarded against by the defendant.

"Third. That the declaration shows on its face that the alleged injury was caused by the fire department of the city of Norfolk, which is a governmental department of the said city, for whose negligence no right of action lies against the city."

The circuit court sustained the demurrer generally, and the plaintiff applied for and secured a writ of error.

The gravamen of the first two grounds of demurrer is that the condition of the street was not the proximate cause of the plaintiff's injury, so that upon the case stated there was no liability upon the city.

Unquestionably it was the duty of themunicipality to keep its streets, including Holt street, in a reasonably sound, safe, and serviceable condition for public use and travel. This duty, the plaintiff asserts, was not discharged. The declaration alleges that the city negligently allowed Holt street to "become in a dangerous and unsafe condition, " in that it permitted and allowed a rut, or defect, across said street of the following dimensions, to wit, about ten feet long, two feet wide, and eight inches deep. Further, it is alleged that this rut, or defect, is "particularly dangerous, in that...