West v. City of Portsmouth, 4267
Decision Date | 22 November 1954 |
Docket Number | No. 4267,4267 |
Citation | 196 Va. 510,84 S.E.2d 503 |
Parties | MARY E. WEST v. CITY OF PORTSMOUTH. Record |
Court | Virginia Supreme Court |
William L. Parker, for the plaintiff in error.
R. C. Barclay, for the defendant in error.
The plaintiff, Mary E. West, proceeded by motion for judgment against the city of Portsmouth alleging that she had been injured in a fall resulting from a defective condition which the city negligently permitted to exist in one of its sidewalks. A jury returned a verdict for the plaintiff in the sum of $5,000.00, which verdict the city moved to set aside as contrary to the law and the evidence. The trial court sustained the city's motion to set aside the verdict and entered final judgment for it, to which action of the trial court we granted the plaintiff this writ of error.
The questions presented for our decision are: 1. Does the evidence disclose the existence of an actionable defect in he sidewalk? 2. Did the city have notice, either actual or constructive, of the alleged defective condition? 3. Was the plaintiff guilty of contributory negligence as a matter of law?
The evidence disclosed that at the time of the injury complained of the plaintiff lived at number 21 North Middle street in the city of Portsmouth and had resided there for the preceding fifteen or sixteen years. It was 'drizzling and kind of dark' on the morning of July 27, 1950, when the plaintiff, who was 80 years old and in good health, left her home and proceeded south on Middle street to a grocery on the corner of Glasgow and Middle streets, a route she testified she traveled 'several times each week.'
On the way she successfully traversed the allegedly defective sidewalk, but upon returning from the grocery to her home she fell in front of dwelling house number 115 Middle street and sustained her injury.
The sidewalk where the plaintiff fell, measured from the curb to house number 115, was tweleve feet one inch wide. However, a set of steps leading to the house and a small planting area in which stood a tree six inches in diameter impinged upon this width. The actual width of the usable sidewalk at the scene of the accident, measured from the end of the planting area to the foot of the steps, was six feet four inches. This sidewalk was constructed of bricks laid in a herringbone design on a cushion of tamped sand.
The plaintiff's account of how the accident occurred is difficult to follow. She testified that 'I was going along and everything looked good to me, and I put my foot down and the bricks was underneath and it was a sink and my foot just tripped. ' Then in answer to how large the sink looked to her, she made the following comment:
'
'
The plaintiff further testified that after she had fallen, she saw 'a piece of loose brick laying down there' and that 'there was nothing but loose and uneven bricks that I stepped on.'
The plaintiff's granddaughter, who was not present at the time of the accident, but who later in the day inspected the sidewalk in front of number 115 Middle street, testified that there was a half brick sticking up 'in front of the step' and that she replaced it in its normal position. These two witnesses were the only persons called by the plaintiff to prove a defect in the sidewalk. However, the evidence also showed that on July 31, 1950, four days after the accident, the sidewalk in front of dwelling house number 115 Middle street was repaired by employees of the city, one of whom died before the trial. The employee living at the time of trial testified that there were no loose bricks and that the repair made consisted solely of replacing worn bricks with new ones to eliminate a slight depression. These city employees were regularly employed in repairing sidewalks and on this particular occasion acted without specific instructions from their superiors. Before this repair was made, plaintiff's son, who for some unexplained reason did not testify at the trial, was asked to inspect the site and did so.
In most American jurisdictions, irrespective of any statute expressly imposing liability, municipal corporations are held liable for injuries resulting from their failure to keep streets and sidewalks in a reasonably safe condition. 25 Am. Jur., Highways, § 348, p. 641; 63 C.J.S., Municipal Corporations, § 782, p. 88; 19 McQuillin, Municipal Corporations, 3d ed., § 54.01, p. 6; Lile, Notes on Municipal Corporations, 3d ed., § 83(2), p. 47. However, a city is not an insurer against accidents upon its streets and sidewalks, and its duty is discharged if it exercises ordinary care to keep them in a reasonably safe condition for travel, in the usual modes, day or night. 19 McQuillin, Municipal Corporations, 3d ed., § 54.11, p. 48; Lile, Notes on Municipal Corporations, 3d ed., § 84(a), p. 48. It is generally held that before there can be a recovery for injuries sustained because of the defective condition of a street or sidewalk, the following must be proved:
'1. A defective condition such as to create liability, provided the other necessary elements are present. This condition may be one created by the municipality or by third persons.
'2. Actual or constructive notice to the municipality of the defective condition of the street before the accident. The exceptions, when notice is not necessary, are (a) where the defect is created by the municipality (b) where the defect is caused by a licensee under a permit granted by the municipality, or (c) where a statute or charter provision otherwise provides.
'3. Time to put the street in a reasonably safe condition after notice (where notice is necessary) of the defect.
'4. It...
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