Town of Virginia Beach v. Ogle

Whittle, P., delivered the opinion of the court. [612] The judgment under review was recovered by Mrs. Ogle against tjie town of Virginia Beach for personal injuries caused by a defective board walk on a public street of the-town. Virginia Beach was incorporated March 6, 1906 (Acts. 1906, p. 80), but long prior to that time the town had been laid off into-lots and streets and had been built up and occupied as an unincorporated town known as “Virginia. Beach.” The survey and map, called the “Hughes Map,” was duly recorded and is expressly referred to in the act of' incorporation, and answers the statutory requirement that,. “The council of every city and town shall (unless it has. already been done) cause to be made a survey and plan of such city or town, showing' distinctly each lot, public-street and alley therein, the size and number of the lots, and the width of the streets and alleys, with such explanations and remarks as may be deemed proper. * * *” Va. Code 1904, sec. 1014. The town is a seaside resort connected with the city of' Norfolk by the Norfolk Southern Railroad. The contention, on behalf of the town is that the point at which the accident happened was originally an approach built by the railroad to a pleasure pavilion erected by the company for the accommodation of excursionists and passengers traveling oyer its line, but at the time of the accident a new excursion and amusement pavilion had been constructed by the company to which its patrons were taken by train; and that, the use of the old pavilion had been discontinued. The opposing contention of the plaintiff is that this board walk was an extension of Arkansas avenue, or Tenth' street, one of the original streets of the town, and connected it. with the board walk along the water front; and that it had long been constantly used by the public and accepted and. maintained by the town as a street. [613] It is true exception was taken to the giving and refusal of instructions, but the case, at last, was fairly submitted upon a simple issue of fact, which the jury, upon conflicting evidence, resolved in favor of the plaintiff. Their verdict was approved by the trial court, and its ruling in the matter of instructions does not, we think, constitute reversible error. The judgment must, therefore, be affirmed.