Tyler v. City of Richmond

• Decision Date: 10 June 1937
• Citation: 168 Va. 308
• Court: Virginia Supreme Court
• Parties: IDA M. TYLER v. CITY OF RICHMOND.

Page 308

168 Va. 308

IDA M. TYLER v. CITY OF RICHMOND.

Supreme Court of Virginia, Wythebille.

June 10, 1937.

Present, Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. STREETS AND HIGHWAYS — Liability for Obstructions — Municipal Corporations — Obstructions Placed by Municipality's Servants or Agents. — Ordinarily a municipality is not liable for injuries to travelers upon a public highway caused by obstructions of which it had no notice either actual or constructive, but where the obstruction in the street or highway which caused the injuries to the traveller was placed there by the servants or agents of the municipality it is liable to the traveller for such injuries whether it had notice or not.

2. EVIDENCE — Striking out Plaintiff's Evidence — All Reasonable Inferences to Be Drawn in Plaintiff's Favor. — Upon a motion to strike the evidence of the plaintiff at the conclusion thereof, the court must draw all fair and reasonable inferences from the evidence in favor of the plaintiff, and if, upon a consideration of the entire evidence, it might reasonably support a verdict for the plaintiff, the motion should be overruled.

3. STREETS AND HIGHWAYS — Liability for Obstructions — Municipal Corporations — Striking out Plaintiff's Evidence — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff tripped over a chain lying in weeds and grass on an unpaved sidewalk and fastened to the tongue of a wagon sprinkler belonging to defendant, a motion to strike plaintiff's evidence, made at the conclusion thereof, was sustained. The sprinkler had been placed upon a vacant lot with the tongue extending some three feet over the sidewalk. The place where plaintiff fell was dark and there were no lights or other warning signs upon the sprinkler or the tongue or chain. Several days prior to the time plaintiff received her injuries the tongue had been removed from the sprinkler by defendant's employees and a new one installed.

Held: That it was error to sustain the motion to strike plaintiff's evidence, since, allowing her the reasonable inferences flowing therefrom, the evidence might have justified a finding by the jury that defendant's servants negligently placed the obstruction on the sidewalk and as a proximate result of such negligence plaintiff was injured.

4. NEGLIGENCE — Ordinary Care — Question for Jury. — What amounts to ordinary care is generally for the jury to decide and depends upon the circumstances of each particular case.

5. STREETS AND HIGHWAYS — Sidewalks — Right of Pedestrian to Assume Sidewalk Is Unobstructed. — Ordinarily a pedestrian may assume that the sidewalk is unobstructed, certainly until he has some knowledge to the contrary. He is not bound to keep his eyes constantly fixed to the sidewalk.

6. STREETS AND HIGHWAYS — Liability for Obstructions — Municipal Corporations — Contributory Negligence — Case at Bar. — In the instant case, an action to recover for injuries sustained when plaintiff, about 10:30 at night, tripped over a chain lying in grass and weeds on an unpaved sidewalk and fastened to the tongue of a wagon sprinkler belonging to defendant, defendant contended that plaintiff was guilty of contributory negligence as a matter of law. This contention was founded upon the following question, and answer by plaintiff: "Were you looking where you were walking?", to which she replied: "No sir; I was just coming along walking like I always did."

Held: That while plaintiff was bound to exercise ordinary care and had no right to "walk by faith," yet from the circumstances then existing, the darkness, the grass and weeds obstructing the chain, whether she was guilty of contributory negligence was a question for the jury.

Error to a judgment of the Hustings Court, Part II, of the city of Richmond. Hon. Ernest H. Wells, judge presiding. Judgment for defendant, Plaintiff assigns error.

The opinion states the case.

L. C. O'Connor and W. C. Parkinson, for the plaintiff in error.

James E. Cannon and Ordway Puller, for the defendant in error.

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

Mrs. Ida M. Tyler proceeded in the court below by notice of motion for judgment against the city of Richmond to recover damages for personal injuries received by her resulting from a fall on one of the unimproved sidewalks of the city. At the conclusion of plaintiff's evidence, the court, upon motion of the defendant, struck out all of the evidence which had been introduced by the plaintiff. This action of the court resulted in a verdict and judgment for the defendant. The object of the present writ of error is to reverse that judgment.

Mrs. Tyler, a married woman, employed by the American Tobacco Company, was returning to her home on the night of July 10, 1935, about 10:30 o'clock when the injury complained of occurred. She lived at 1308 Bryant Street, one of the outlying districts of the city of Richmond. While walking upon the unpaved sidewalk on the south side of Littlepage street her foot became entangled in an obscured chain which was lying in a growth of grass and weeds on the sidewalk. One end of the chain was fastened to the end of the tongue of a wagon sprinkler which belonged to the city. The fall resulted in serious injuries to Mrs. Tyler.

The place where Mrs. Tyler fell was dark. The nearest street light was half a block away. The sprinkler had been placed upon a vacant lot in such a manner that the tongue extended some three feet over the sidewalk. There were no lights or other warning signs upon the sprinkler or the tongue and chain.

Several days prior to the time when Mrs. Tyler received her injuries the tongue had been removed from the sprinkler by employees of the city and a new one fitted and installed. It was painted when installed and new chains attached to it.

Mr. Tyler, the husband of the plaintiff, testified that the employees of the city left the sprinkler on the lot on Monday or Tuesday, which was July 8th or 9th, and it was then that the new tongue was installed. He also said they left the sprinkler near the sidewalk and about 12 to 15 feet from the alley with the tongue projecting over the sidewalk.

From the testimony of the witness Corker, the attorney for the city seeks to...