City of Newport News v. Scott's Administratrix

Harrison, J., delivered the opinion of the court. About six o’clock on the afternoon of July 10, 1903, Jacob Scott, an infant four and one-half years of age, was -found drowned in a large hole filled with stagnant water, in the middle of Virginia avenue, between Forty-first and Forty-second streets, in the city of Newport News, and this action was brought by his mother, as his administratrix, to recover damages of the plaintiff in error for having, as alleged, negligently caused the death of her intestate by allowing one of its streets to be and remain in a dangerous condition. The trial resulted in a verdict and judgment thereon in favor of the plaintiff for $5,000. From this judgment the case has been brought to this court for review. The declaration states a good cause of action, and hence the • demurrer thereto was properly overruled. In order to make clear the ground of our conclusion in this case, it will be necessary to state as briefly as possible the salient facts established by the evidence. Virginia avenue, south of Fortieth street, has been graded by the city, curbing laid, electric lights established, water plugs located, and the avenue made in all respects a finished street, having houses erected on either side. Beyond Fiftieth street, in a northerly direction, this avenue has been opened up, graded and put in shape for use, the work having been done by the Old Dominion Land Company prior to the act by which the territory was made a part of the city of Newport News; but this portion of the street has now been taken charge of by the city, and is under- its management and control. The avenue covering the intervening space between Fortieth and Fiftieth streets has not been graded or otherwise improved, and has no houses which front thereon, but the cross streets which intersect Virginia avenue from Fortieth to Fiftieth streets are [807] built up with residences on both sides nearly to that avenue. These residences are, as a rule, occupied by persons, with their families, who are employed in the ship-building plant located in Newport News. The accident which is the subject of this inquiry occurred in Virginia avenue, between Forty-first and Forty-second streets, and, while the avenue at that point has not been graded and improved by sidewalks, or otherwise, it is entirely open and in daily use by numbers of people as a means of ingress and egress, and is conspicuously frequented by large numbers of children. A pathway wide enough to accommodate two or three persons is worn along one side of the street, indicating that the travel is confined to that side. At the intersection of Virginia avenue with Fortieth street, there is an electric arc light, and at its intersection with Forty-second street there is another. The expense of maintaining these lights is borne by the city. In the centre of Virginia avenue, five feet below the surface, a twelve-inch sewage pipe is laid, which extends from the heart of the city on the south, up to and beyond Fifty-seventh street on the north. This sewage system is owned, controlled, and maintained by the city. At a point on Virginia avenue between Forty-first and Forty-second streets, a large hole, twenty-nine feet long, twelve feet wide, and five feet eight inches deep, was made in the centre of the street. This dangerous place resulted from a break in the sewer pipe at that point, which caused the earth to sink and be carried off; and, the pipe becoming stopped up in some way, the hole filled with waiter. When this condition of things occurred the first time, it was reported by the police officer whose beat included that portion of Virginia avenue, to the proper city authorities, several times, and finally the city street force undertook to repair the damage and fill the hole up. In a very short time thereafter another [808] hard rain caused the pipe to again break, making- the same hole, which was again filled with water. The same police officer, whose duty it was to report all defects in the streets within his beat, again and again reported this second break, and the consequent dangerous condition of this place to the proper city authorities, who paid no attention to these repeated warnings, and left this dangerous pitfall for several months and until the 10th of July, when the accident happened for which reparation is now sought in damages. The deceased child lived -with his widowed mother at 328 Forty-second street, distant one hundred and sixty feet from the point of accident. At fifteen minutes before six o’clock this little child was in the house with his mother, and at six o’clock she i was notified of his death by a young lady who was passing along the street, and had pulled him from the hole of water, drowned. In the light of these facts, we find it wholly unnecessary to deal with the contentions of plaintiff in error, that Virginia avenue, at the point of the accident, was not open to the public ; that if open at all it was only to the extent of that portion over which the public had worn a pathway, and that no duty rested upon the city to maintain the rest of the street; and that the hole of water was sufficiently removed from the pathway to be no menace to those who kept in the path. As shown by the ordinances of the city and the map of its streets and alleys, duly recorded in accordance with section 1014 of the Code of 1887, Virginia avenue had been dedicated and accepted by the city of Newport News as one of its public streets. It was under the supervision, management, and control of the city, and if not opened at the point of the accident in the sense that it had been improved with sidewalks and otherwise, it was open in the practical sense that the public, including large numbers of children, were using it daily with [809] the full knowledge and acquiescence of the city. "Under such circumstances, the city cannot escape liability where it has allowed such a terrible death-trap as this record discloses to remain for months in one of its streets, where the public, including children, had the right to be, and did go. The city was warned repeatedly of this dangerous condition, and had recognized its obligation to repair by repairing the same place on a former occasion. It requires no citation of authority to support the proposition that such negligence was inexcusable. The mother cannot, as contended, be said, as a matter of law, to have been guilty of contributory negligence. That was a question for the jury, and was submitted to them by a proper instruction. The mother, in this case, kept a boarding-house for laborers at the shipyard, as a means of support for her self and family. At the time of this accident she was busy preparing the evening meal for those who boarded with her. This little child was in the room with its mother, and within fifteen minutes, before she had missed him, the child was taken from this enormous pool of water that was in the centre of the street, and not more than one hundred and sixty feet from the door. In the case of City of Chicago v. Major, infra, the action was brought against the city, in the name of the father, as administrator, for causing the death, by drowning, of an infant four years of age, in negligently permitting a water tank to remain in the street, defectively closed, for a period of one month. The court said, in reference to the question of contributory negligence: “A large majority of children, living in cities, depend upon the daily labor of both parents for subsistence, and these parents are unable to employ nurses who may keep a constant and vigilant eye, momentarily, upon their children; and we cannot hold, as a matter of law, that every time a child four years of age steps into the street unattended, the mother [810] is guilty of such negligence as would authorize every reckless or careless driver to run over and trample it down with impunity, or, as would authorize the city to expose traps and pitfalls in every corner of the streets, in which a child may he drowned or maimed. Such a rule of law would depopulate a city of its laboring inhabitants. In this, as in all other cases, it must be left to the jury to determine whether the parents of the child have been guilty of negligence in suffering the child to be in the streets.” City of Chicago v. Major, 18 Ill. 348, 68 Am. Dec. 553. The ruling in this case on the question of contributory negligence was affirmed in a subsequent case, by the same court, where the action was brought by an administrator against the same city to recover damages for the drowning of a child four years old in a ditch filled with water immediately in front of the residence of its parents. City of Chicago v. Hessing, admr., 83 Ill. 204, 25 Am. Rep. 378. An examination of the record shows that the rights of the plaintiff in error were not prejudiced by the action of the court in giving and refusing instructions, nor in refusing, to set aside the verdict as contrary to the law and the evidence. Indeed, upon the whole case, it is difficult to see how any other verdict could have been rightly found. For these reasons, the judgment must be affirmed. Affirmed.