Schlossberg v. Brugh

187 S.E. 487, 167 Va. 49, 1936 Va. LEXIS 274
CourtSupreme Court of Virginia
DecidedSeptember 11, 1936
StatusPublished
Cited by5 cases

This text of 187 S.E. 487 (Schlossberg v. Brugh) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schlossberg v. Brugh, 187 S.E. 487, 167 Va. 49, 1936 Va. LEXIS 274 (Va. 1936).

Opinion

Eggleston, J.,

delivered the opinion of the court.

T. H. Brugh, the plaintiff below, while walking westwardly along the sidewalk on Church avenue, in the business district of the city of Roanoke, tripped over an iron door covering the entrance leading from the sidewalk into the basement under the adjacent building, fell into said opening, and was injured. He instituted this action at law against N. W. Schlossberg, the person in possession of the abutting premises, to recover damages for his personal injuries. The trial resulted in a verdict of $1,500 in favor of the plaintiff, on which the lower court entered judgment. The matter is before us [51]*51on a writ of error granted to Schlossberg. The parties will be referred to as they appeared in the court below.

The principal assignment of error is that the evidence is insufficient to support the verdict, that the defendant was not guilty of any primary negligence, and that, in any event, the plaintiff was guilty of contributory negligence which barred his recovery.

The opening in the sidewalk had been constructed pursuant to the necessary authority from the city. It was covered by two solid iron doors, each approximately four feet long by eighteen inches wide, running across the sidewalk. These doors were so hinged as to permit them to open outwardly and stand at an angle of forty-five degrees to the pavement. The doorway occupied about one-half of the width of the eight-foot sidewalk.

Shortly before the accident, which occurred at about 5:20 P. M. on December 19, 1933, the doors had been opened by the defendant’s employee who was in the basement attending the furnace. A single piece of lumber six inches wide, four inches thick, and about eight feet long, was laid across the opening from one door to the other. Except for this the doorway was not guarded, marked, or lighted.

An ordinance of the city of Roanoke provided: “And no cellar-way, coal-hole, or other hole of like nature opening in or upon the public streets or sidewalks shall be allowed to be open or remain open unless guarded by bars or otherwise, under a penalty of not more that? five dollars for each offense, to be imposed upon the person causing or permitting the same.”

The plaintiff had been standing with a companion at the entrance to a poolroom on the south side of Church avenue. He was waiting to catch a bus which he momentarily expected to pull up at the bus stop a short distance west of where he was standing. It was raining and the street lights were not on.

In a few minutes the bus drew up to the station and the plaintiff started for it. He came from the entrance to the poolroom, turned left and walked westwardly along the [52]*52sidewalk. The first building on his left, and adjacent to the poolroom entrance, was a barber shop. The next building to the westward was a restaurant, immediately in front of which was the doorway leading into the basement. This doorway was eighteen feet from the poolroom entrance. Both the barber shop and restaurant were occupied and lighted on the interior.

As the plaintiff passed the barber shop something therein attracted his attention. He glanced in the window but continued walking. With his attention still directed towards the window, and looking back over his shoulder, he continued up the street until he tripped over the door and fell into the basement entrance located just beyond the barber shop. From the time he left the place where he was standing in front of the poolroom until he fell, he never once looked in the direction of the obstruction towards which he was walking.

As to the primary negligence of the defendant we think the evidence is ample to support the verdict of the jury. It is undisputed that the opening was unguarded except for the single wooden bar leading from one door to the other. Certainly the jury was justified in finding that this was not a sufficient guard (if, indeed, it was ever intended as such) as was required by ordinance.

The books are full of cases holding an abutting owner liable for injuries sustained by a pedestrian because of the failure to properly safeguard such openings. A number of such cases are collected in áh annotation in 70 A. L. R., page 1366.

The only serious question is whether the plaintiff was guilty of such contributory negligence as to bar his recovery.

Accidents of this character are frequent and the principles pertaining thereto are well settled. A pedestrian is required to exercise only ordinary care for his own safety. In the absence of knowledge to the contrary, he may assume that the street throughout its entire width, or so much thereof as is intended for travel, is in a reasonably safe condition, and he is not required as a matter of law to be on the lookout for defects or obstructions either by day or by night. Jones v. [53]*53Massie, 158 Va. 121, 128, 163 S. E. 63; City of Radford v. Calhoun, 165 Va. 24, 181 S. E. 345, 348, 100 A. L. R. 1378; Whitten v. McClelland, 137 Va. 726, 734, 120 S. E. 146.

Whether a pedestrian has exercised ordinary care for his own safety under the circumstances of the particular case is generally a question for the jury. 13 R. C. L., page 521, section 433; Bashford v. Rosenbaum Hardware Co., 120 Va. 1, 10, 90 S. E. 625. Only when the facts are undisputed, and but one reasonable inference can be drawn from them, does the question of the contributory negligence of the pedestrian become one for the court and not for the jury.

In Osborne v. Pulaski Light & Water Co., 95 Va. 16, 27 S. E. 812, we held the plaintiff guilty of contributory negligence as a matter of law where, in the daytime, she fell into a ditch eighteen to twenty-four inches wide and two and one-half feet deep, running across a sidewalk. She testified that as she walked along the street she was looking not ahead but into a yard where some flowers had attracted her attention, and that had she been looking to the front she would have seen the ditch.

We there said (95 Va. 16, 17, 27 S. E. 812): “This court has repeatedly held that a traveler on a public street is held to the exercise of ordinary care. He has the right to assume that the sidewalk is in a safe condition, and is not required to anticipate danger, but this does not excuse him from the exercise of his own faculties. When reasonable attention on his part will enable him to avoid an open and obvious danger, he can not recover if he has neglected to exercise that ordinary and reasonable care which is expected and required of every one.”

This case was. recently approved by this court in Staunton v. Kerr, 160 Va. 420, 168 S. E. 326, wherein it was held that a pedestrian was guilty of contributory negligence as a matter of law when she stepped into a hole in the sidewalk, two feet long, seven feet wide, and from one to three inches deep, which she admitted she would have seén had she but looked. That accident likewise happened in the daytime.

[54]*54In Staunton v. Kerr, supra, we cited with approval Portsmouth v. Lee, 112 Va. 419, 71 S. E. 630, wherein the plaintiff was held guilty of contributory negligence as a matter of law in stumbling over a hose stretched across the cross-walk, about three feet from the curb. This accident happened at night. #

In Moore v. City of Richmond, 85 Va. 538, 8 S. E.

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187 S.E. 487, 167 Va. 49, 1936 Va. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlossberg-v-brugh-va-1936.