City of Winchester v. Carroll

Whittle, J., delivered the opinion of the court. This was an action of trespass on the case brought by A. E. Oarroll against the city of Winchester to recover damages for personal injuries sustained by her from a fall received while attempting to step from the sidewalk to the roadway on Loudoun or Main street, in that city. — 738 — There was a verdict and judgment, for the plaintiff, and the case is brought here on writ of error to that judgment. The alleged cause of action against the city is, that the sidewalk where the accident occurred was higher than the street; that it was unprotected by a barrier or guardrail, and that the street was insufficiently lighted. There was an original and amended declaration, each containing several counts, to each of which the defendant demurred. The grounds of demurrer are twofold: (1) That the averments of the declarations in regard to the circumstances attending the accident disclosed the fact that the plaintiff had been guilty of contributory negligence. A careful consideration of both the original and amended declaration shows that this objection is not well founded. ISTone of the counts affirmatively presents a case of contributory negligence; and it is not incumbent upon a plaintiff to aver that he has not been guilty of such negligence. The same principle applies to both the pleading and evidence. If the declaration or the plaintiff’s own testimony develops a case of contributory negligence, the former would be demurrable and the latter would defeat a recovery. But unless it does so appear, the declaration is not amenable to objection for a failure to deny the existence of contributory negligence, and the burden of proving it rests upon the defendant. There is no obligation on the plaintiff to either deny or disprove it. B. & O. R. R. Co. v. Whittington, 30 Gratt., 805; S. W. I. Co. v. Andrews, 86 Va., 270; N. & W. R. R. Co. v. Oilman, 88 Va., 239. In point of fact, each count of both declarations denies knowledge on the part of the plaintiff that the sidewalk was higher than the level of the street, and avers that the plaintiff was without negligence,, and the injury complained of was the result of the negligence of the defendant. (2) The other ground of negligence charged is that the city — 739 — failed to properly light the street and sidewalk, which omission, it is alleged, was a proximate cause of the accident. The contention on behalf of the defendant is, that inasmuch as the charter does not grant the power or impose the duty upon the city of lighting the streets, there was no legal obligation resting upon it to do so. That power is, however, granted by general statute^ V. C., sec. 1038, and the declaration avers that the city had “assumed and was exercising the right and duty to- keep the said streets and sidewalks properly and adequately lighted.” If such was the fact, whether the charter imposed the obligation to light the streets or not, the city would be liable for any injury that might result from the negligent manner in which it performed that duty. Noble v. City of Richmond, 31 Gratt, 271; City of Norfolk v. Johnakin, 94 Va., 285; Barnes v. District of Columbia, 91 U. S., 540. There was no error, therefore, in the judgment of the court overruling the demurrer to- the declarations. The second assignment of error is that the plaintiff failed to prove that the sidewalk at the place of the accident was under the control of the city as a public sidewalk. It is requisite that a street should not only be dedicated but accepted, by a city, before it can be charged with the duty of keeping it in repair. In the case of a common law dedication and acceptance, both may be presumed from long user. A user for a period corresponding with the statutory limitation applicable to real actions in the jurisdiction where the question arises will ordinarily suffice. 2 Dillon Munic. Corp. (4th ed.), secs. 637-642. That principle is clearly illustrated in the case of Buntin v. City of Danville, 93 Va., 200: “Dedication is an appropriation of land by its owner for the public use. It is not within the statute of frauds, and. need not be by deed or other writing, but may be effectually doné by verbal declaration. It may be ex — 740 — press or implied, and will be implied from long use by the public of the land claimed to be dedicated. The intent is the vital principle, and the dedication may be made in every conceivable way that such intention may be manifested. When such intention has been unequivocally manifested, and there has been acceptance by competent authority, or such long use by the public as to render its reclamation unjust and improper, the dedication is complete; and when complete it is irrevocable.” A dedication thus made and accepted carries with it all the incidents, whether of benefit or liability, which would accrue from the most formal statutory or express dedication. The proof is plenary to establish both a dedication and an acceptance of the thoroughfare in this instance. It has been used as such by the public from the earliest recollection of the oldest inhabitants. Tor years it had been known in the plan of the city as Loudoun or Main street; the houses fronting on it had been numbered; water mains had been laid, electric wires hung on poles along its curbing, and it had been guttered, lighted, and cleansed at public expense; and the property-owners and city had jointly paved portions of the sidewalk. It was also shown to be under police supervision and within, the territorial limits, and under the control of the superintendent of streets and water. The evidence leaves no room for doubt hut that it was one of the established and recognized streets of the city, and had been such from the earliest period of its history. City of Richmond v. Stokes, 31 Gratt., 113; 2 Dillon’s Mun. Copr., sec. 1009. The salient points of the testimony bearing directly upon the accident are: That the sidewalk from which the plaintiff stepped was more 'than three feet higher than the surface of the street; that there were no barriers or guard-rails to protect it, and that the place was insufficiently lighted. There was an electric light near the southern terminus of the elevated sidewalk, at the intersection of Loudoun or Mainl street with Peyton — 741 — street, but it was defective and afforded an imperfect light, and at times went out entirely. The length of that section of the sidewalk was 212 feet, embracing the entire frontage of the Yalley Female College lot, with an average width of about 12 feet. The sidewalk was held in position by a perpendicular retaining wall, constructed of light colored limestone rock, with coping of the same material, which varied in height from two feet at the southern terminus and fifteen inches at the northern terminus, to a maximum elevation of 3 feet 3 inches. The sidewalk was reached at the southern end by a flight of four stone steps, and at the northern by one stone step. It appears from photographs that these physical conditions were manifest and obvious to the most casual observation. The plaintiff was sixty years of age, but labored under no defect of vision, and was in possession of all her faculties. She had been a resident of Winchester, living on Loudoun or Main street, for four years prior to the accident. During a part of that time she resided three doors south of Peyton street, and for the rest of the period about one block south of that point. From her home the retaining wall and elevated sidewalk were visible. She had walked up the stone steps at the southern terminus of the sidewalk and along its entire length at least six times; had occasionally driven along the street by the side of it; and had walked past it on the opposite side of the street and, crossing over to the northern terminus, had ascended the stone step and traversed the sidewalk from north to south, descending into Peyton street by means of the stone steps at that point. She had occasionally visited the houses of friends living on the side of the street opposite to and in plain view of the retaining wall. This wall and sidewalk were also visible from the corner of Loudoun or Main street and Baker street, along the route usually travelled by the plaintiff in going to the store of the son-in-law with whom she resided. On the occasion of the accident the plaintiff left her home — 742 — before dark to attend commencement exercises at tbe Valley Female College. She approached the elevated sidewalk from Peyton street, ascending the stone steps referred to. The exercises were attended by a large number of persons, and lasted until eleven o’clock at night. At their conclusion the plaintiff, in company with her granddaughter, a child ten years of age, came out with the throng of people to the sidewalk. Her version of what then occurred is as follows: “I did not think of anything. It was dark. I tried to go down the pavement when I came out of the gate. And I thought it would be a better way to get home to go- out in the street, never thinking about there being any danger; and then I fell off the bank, just walked off it.” In answer to the question: “Did you step off the bank inadvertently, or did you walk straight ahead?” she replied: “I walked straight ahead, with the intention of going out in the street.” “Q. You say there was a crowd? A. Well, there was some above and some below. I did not pay much attention to it any way, but just thought the street would be the best way to go home.” “Q. Did you know at that time that the sidewalk was much higher than the street? “A. Ho, sir; I didn’t know about it or think much about it; I just supposed it was like the pavement at any other place, just a little gutter.” On cross-examination, in reply to the suggestion that she must have known the sidewalk was higher than the roadway if she went up the steps to get upon it, she remarked: “Well, when people go up steps they don’t always stop to think what else is around it.” At the trial exceptions were taken by the defendant to the ruling of the court in refusing to grant some of the instructions offered by it, and in giving others of its own. — 743 — Of the instructions generally, it may be affirmed that they are correct expositions of the principles intended to be elucidated. In view of the tendency of the evidence, however, to fix knowledge upon the plaintiff that the sidewalk was dangerously higher than the street, instructions Ho. 4 and Ho. 9 failed to plainly and explicitly instruct the jury upon that phase of the case, and were calculated to mislead them. Instruction Ho. 4 is as follows: “The court instructs the jury, that crossing a road or street or walking from a sidewalk into the street, either at right angles or diagonally, at a point where there is no regular crossing, does not in itself constitute contributory negligence on the part of a pedestrian, but is a circumstance to be weighed by the jury in view of all the circumstances of the case.” The vice of this instruction upon the evidence is its failure to differentiate a case in which a pedestrian has knowledge of the defect which renders the crossing dangerous, from one in which he is ignorant of that fact. The weight of authority sustains the proposition that one who does not know that there is a material inequality between the sidewalk and street, or other conditions rendering an attempt to pass from the one to the other dangerous, in the exercise of ordinary care, is not guilty of negligence in leaving the former at a point other than a regular crossing’, and in going into the street. Beach on Cont. Neg. (1st ed.), p. 260; City of Augusta v. Thorpe, 38 S. E. R., 389; Orme v. City of Richmond, 79 Va., 86-90; City of Danville v. Robinson, ante p. 448; Bell v. Town of Clarion, 84 N. W., 962. See also authorities collected in notes to Ely v. City of Des Moines (Iowa), 17 L. R. A., 124, and in 15 Amer. & Eng. Ency. of Law (2nd ed.), 473. A person using the streets of a city is only required to exercise ordinary care to avoid accident. But “ordinary care” is not an absolute but a relative term, the standard of which is neces — 744 — sarily variable and is influenced and controlled by the extraneous "circumstances surrounding the particular transaction. Ho fixed rule can be formulated for all cases. What might be regarded as the exercise of ordinary care under some circumstances would under others constitute gross negligence. Newport News, &c. R. R. Co. v. Bradford, ante p. 117. A practical application of the rule would impose a higher degree of caution upon one who attempts to step from a sidewalk to the street in the dark at a place other than a public crossing, than would be required at such crossing. It is wholly impracticable for a city to keep all the space along its sidewalks in as suitable and convenient a condition for pedestrians to cross as at regular crossings, and hence a greater degree of care is necessary in the one instance than in the other. One has a right to,assume that all parts of the street are in a reasonably safe condition for the purpose for which they are intended, but he has no right to assume that all parts áre as smooth and even as places specially prepared for regular crossings. Such an assumption would contravene common experience; and, if permissible, would impose intolerable burdens upon .cities. Raymond v. City of Lowell (6 Cush., 524), 53 Amer. Dec., 57; 2 Beach on Pub. Cor., sec. 1540. But a different principle applies to a case in which a person who with hnowledge of conditions rendering an attempt to pass from a sidewalk to a street obviously and imminently dangerous, nevertheless, from inadvertence or inattention, steps from the one to the other, in the dark, and is injured. Such conduct would amount to contributory negligence per se, and would bar a recovery, however negligent the city may have been. The general doctrine is, that whether one has been guilty of negligence or not is a mixed question of law and fact, tO' be determined by the court when the facts are undisputed or conclusively proved, but not to be withdrawn from the jury when the facts are disputed or the evidence is conflicting. But, inas — 745 — much as instructions are predicated upon a hypothetical state of facts, when from the facts assumed, it is manifest that an ordinarily prudent person would not have acted in the manner supposed, it is the duty of the court to tell the jury, if they shall believe from the evidence that such conduct has been established, as matter of law, it constitutes contributory negligence and would defeat a recovery. Instruction Ho. 6, asked for by the defendant, recognizes that principle; but the effect of that instruction was neutralized by instruction Ho. 9, and the general rule is, that where inconsistent instructions have been given,, the verdict of the jury should be set aside. N. & W. R. R. Co. v. Mann, ante p. 180. Instruction Ho. 9 told the jury “that a passer has a right to presume the streets and sidewalks to be reasonably in a safe condition. And though the plaintiff had actual knowledge of their bad condition, their use by her was not of itself negligence, and did not impose on her the exercise of extraordinary care.” As an abstract proposition, the instruction may be correct, but it is obvious that, as applied to the evidence in this case its only effect could have been to mislead the jury. The instruction applies to a class of cases where the public are not forbidden to use the streets, although they may know that they are defective or out of repair, provided they exercise ordinary care to prevent accident. But the case under consideration falls within an exception as well established as the rule itself, which is, that if the unsafe condition of the street is such as to render its use obviously and imminently dangerous, there can be no recovery by one cognizant of that fact. Beach on Con. Neg., sec. 77; Tiedeman Mun. Cor., sec. 352; 15 Amer. & Eng. Enc. L. (2nd ed.), 468; Osborne v. Pulaski L. & W. Co., 95 Va., 16; City of Danville v. Robinson, ante p. 448. The instruction gave the general doctrine which was not applicable, but omitted the qualification of the rule which was applicable to the case in hand. — 746 — The jury iu attempting to apply the principle enunciated by the instruction to the case with which they were dealing, must have interpreted it to mean that although they might believe from the evidence that the plaintiff knew the sidewalk was more than a yard higher than the street, she had a right, nevertheless, to step from the one to the other in the dark, and put the city to the hazard of her reaching the roadway in safety. Of course the statement of such a proposition embodies its refutation. In view of the tendency of the evidence to affect the plaintiff with knowledge of the dangerous condition of the sidewalk at the place of the accident, the jury ought to have been told that if they believed from the evidence the plaintiff had such knowledge, they should -find a verdict for the defendant. As to the effect of knowledge of defects in a sidewalk which occasion accident, see City of Richmond v. Courtney, 32 Gratt., 797. Exceptions were also taken by the defendant to the action of the court in admitting and excluding certain evidence. Without referring to the questions and answers in detail, it is sufficient to say that there was no reversible error in the rulings of the court in that regard. As a new trial of the case must be ordered, the court refrains from an expression of opinion as to the weight of the evidence. Eor the foregoing reasons the judgment complained of will be reversed, the verdict set aside, and the case remanded for a new trial to be had therein in accordance with the views herein expressed. Reversed.