City of Richmond v. Leaker , 99 Va. 1 ( 1900 )

Harrison, J.,

delivered the opinion of the court.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff, in consequence of the negligence of the defendant in unlawfully permitting the sidewalk of one of its streets to be obstructed.

The first error assigned is the action of the court in accepting as sufficient the statement filed by the plaintiff, in response to the demand of the defendant, as a bill of particulars of his claim; the contention being that the statement filed is but a reiteration of the allegations of the declaration, and not such an itemized account of the claim as is contemplated by section 3249 of the Code. That section provides that “in any action or motion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defence; and if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration or other pleading of such party, so plainly as to give the adverse party notice of its character.”

This section, in.the same words, is found in the Code of 1849, and it appears from the report of the revisors (1849) that it was talien from the ADassachusetts rules adopted for the purpose of simplifying and shortening pleading. See sections 48-49, 24 Pickering, page 399.

Section 3248 of the Code, like the Massachusetts rule (48), provides that, in action of assumpsit, the plaintiff shall file with his declaration an account stating distinctly the several items of his claim, unless it be plainly described in the declaration.

There would have been no necessity for this section if the contention were well founded, that an itemized statement was required in every case by section 3249. "We think it clear that the object of section 3249 was to provide that in actions, other than assumpsit, the plaintiff should be required to give the defendant full notice of the subject or character of'’his claim; that, if the declaration or other pleading did not present distinctly the grounds or subject of the action, the plaintiff should, if required to do so, file such a statement of particulars as would put the defendant in possession of the character thereof. In Minor’s Insts., referring to section 3249, the learned author says: “ It is provided that in any . action the court may require the particulars of the claim, or the ground of defence to be filed; which might in practice be often judiciously employed to define the subject of the controversy.” 4 Minor (Pt. 1), page 763.

In the case 'at bar, after setting forth in detail the character of the accident, and the circumstances which led to it, the declaration then alleges that the plaintiff thereby had his right arm broken between the elbow and shoulder, and became sick, sore, lame, diseased, and disordered, and so remained from-thence hitherto, during all of which time he thereby suffered and endured great pain, and was prevented from attending to and transacting his necessary and lawful business, and was forced to give up and discontinue his fish, oyster and game business, which he had been conducting for a number of years, and is also disabled from pursuing any calling or business requiring the use of his right arm; and that he had been obliged to pay, lay out, and expend $500 in endeavoring to get healed and cured of his wounds, sickness, etc.

We are of opinion that the declaration in this case gave the defendant complete notice of the nature 'and character of the plaintiff’s claim, and that no further bill of particulars was contemplated or required by section 3249.

The second error assigned is the refusal of the court to give Instructions A and B, asked for by the defendant.

These instructions were intended to inform the jury (1), that the defendant had the right to permit persons, erecting buildings, to use a portion of the streets and sidewalks for the deposit of building Materials and building appliances therein; and (2), that, where such materials and appliances ‘are deposited in a street, and are open and obvious, travellers and pedestrians passing along such street, at the point thus obstructed, must observe greater care, to avoid accident, than would otherwise be necessary. Without holding that the instructions were drawn with entire accuracy, it is sufficient to say that these were sound propositions of law, were applicable to the case, and that the jury should have been so informed. It is contended that Instruction No. 2 L, given for the plaintiff, covers the latter part of the two propositions mentioned. That instruction is itself erroneous in this, that it limits the greater care to be exercised, under the extraordinary circumstances, to the judgment of the plaintiff, as to the necessity for greater care, by providing that “ if the surrounding circumstances were such as to arouse the fear of the plaintiff,” whereas the law imposed upon the plaintiff, when he saw t¡he obstruction, the duty of exercising greater care, whether those circumstances were sufficient to arouse his fear or not.

Instruction No. 3 L, given for the plaintiff, is in these words: “ The court instructs the jury that the burden of proving the defendant guilty of negligence rests upon the plaintiff, and that if the defendant seeks to relieve itself of liability by reason of the plaintiff having been guilty of contributory negligence, the burden of proving such contributory negligence rests upon the defendant.” This instruction should have concluded as follows: “ Unless such contributory negligence was disclosed by the plaintiff’s evidence, or could be fairly inferred from the circumstances.” Kimball & Fink v. Friend, 95 Va. 125; Southern R. Co. v. Bruce, 97 Va. 92.

As the judgment must be reversed for error in the instructions, it is unnecessary to consider other assignments, which relate to questions that need not arise on another trial.

Tor these reasons the judgment must be reversed, the verdict of the jury set aside, and a new trial awarded.

Reversed.