Boush v. City of Norfolk , 136 Va. 209 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

The questions presented by the assignments of error and the positions taken in behalf of the defendant city will be disposed of in their order as stated below.

1. Was there sufficient evidence to support the verdict of the jury in finding that the defendant city had actual or constructive notice of the existence of the obstruction, which caused the accident, in ample time, by the exercise of reasonable care, to have repaired the sidewalk, so as to have made it reasonably safe for pedestrians to use it?

The question must be answered in the affirmative.

The testimony of the sergeant of police, above copied, when considered along with the fact that the meter box in question had been located in the sidewalk for nearly two years before the accident and was, at the time of the accident, in practically the same condition, with respect to projection above the level of the sidewalk, as several other meter boxes on the same block, furnished ample evidence to warrant the jury in reaching the conclusion in question.

2. Did the fact that the meter box in question was installed by the United States government, more ' than two years before the accident, interfere with or excuse the defendant city from the performance of its duty to use reasonable care to keep its sidewalks in a, reasonably safe condition for pedestrians using the same-while themselves exercising reasonable care for their own safety?

The question must be answered in the negative.

It does not appear from the evidence that the United. States government had or exercised any authority whatever over the meter box, or the sidewalk on which it was located, for over two years before the accident. On the contrary, it does appear from the evidence that the defendant city, certainly for over two years before and at the time of the accident, had sole control over and was charged with the sole duty of keeping such sidewalk in the reasonably safe condition aforesaid. So that there was no major force which interfered in any respect whatever with the discharge of that duty, and hence, there was no such force to excuse the defendant city for the negligent failure to discharge such duty.

Belvin v. City of Richmond, 85 Va. 574, 8 S. E. 378, 1 L. R. A. 807, is cited and relied on for the defendant city. It is apparent, however, from a reading of that •case that it has no application to the case in judgment. In that ease the street was obstructed by a rope put up by order of the judge of the hustings court. The city, by its officer, protested against the obstruction as an interference with its authority and duty in the premises, but the judge of the hustings court, regarding the due administration of justice as of more importance than the use of the streets a few yards during a portion of each day, refused to remove the rope. This court held that “The city could do no more, unless it had instituted legal proceedings about the matter,” and upheld a verdict for the city, excusing it from liability for damages for personal injury to the plaintiff caused by the obstruction of the street. That was an entirely different situation from that presented by the facts in the instant case.

3. Can we say that the evidence was insufficient to warrant the jury in assessing the damages of the plaintiff at $1,000?

The question must be answered in the negative.

No authority is cited for the defendant city to sustain its contention that the damages in question are excessive. And, under the principles applicable, which are too well settled to make a review of the authorities on the subject profitable in the present case, it is plain that the evidence amply supported the verdict in the finding of damages in question.

For the reasons stated above we are of opinion that the trial court erred in setting aside the verdict of the jury and granting a new trial; and this court under the statute (Code section 6365) will enter final judgment in favor of the plaintiff for the sum of $1,000, the amount of her damages ascertained by the verdict of the jury, with interest and costs.

Reversed and final judgment..