Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-16

April "a. 1900.
CODE 757 DOES NOT REQUIRE A
CLAIM FOR DAMAGE FOR A
TORT TO BE PRESENTED TO A
TOWN BEFORE ACTION CAN BE
BROUGHT THEREON. WHERE
PLAINTIFF WAS FAMILIAR
WITH A DEFECTIVE SIDEWALK.
AND THROUGH FORGETFUL-
NESS WALKED INTO a HOLE
THEREIN AND WAS INJURED,
HE CANNOT RECOVER.
The authorities of the town of Marion
in 1851 commneced to use IL part of the
right of way OF the Southern Railway
Company as n, street 1t seems that
the street was too narrow to permit
of sidewalks on both sides thereof, and
that up TO 1889 Il sidewalk was made
and kelIt uD on the north side of the
street. when the sidewalk was changed
to the south side of the street. The
plaintiff, who was Il resident Of Marion,
on her return to that place after an ABB
Sence OF a few months, on Il train of
the Southern Railway Company, upon
going to her house. along said street.
at IL O'Clock at night took the side
walk or path Oh the north side of the
street, instead of the well-kept walk
way on the southern side, and fell into
q hole in the path, whereby she sus-
tanned PERSONAL injury, and instituted
this action against both the railroad
company and the town of Marion for
the recovery of damages therefor. She
alleged that She had often walked along
that path,and that when she left Mar
ion In january IL was in good condition
The defendants, in their answer, averr-
ed that she lnIaint!nl knew of her
own personal knowledge that the north
side of said thoroughfare was not CON-
suucted, or prepared, or intended to
be used by foot passengers. and that
the corporation of Marion had provided
Il sidewalk for foot passengers on the
south side thereof. of easy access and
perfectly safe; and this defendant fur
ther alleges that the plaintiff had
knowledge ofthe excavation. and volun-
tarily and carelessly, through inadver-
tence. or indifference to exercise due
care, and negligently and for conve-
nience, refused to SO upon the sidewalk
prepared for foot passengers, and took
the chance of the dangerous path that
led over the washout, and was injured,
If at all, by her owe cortrlbutory negli-
gence."
The court says:
The defendant town of Marion moved
to dismiss the action on the ground
that the complaint did not state facts
sufficient to constitute Il cause of ac-
tion, in that 1T did not allege n demand
upon the town under section 757 Of the
Code. There was no error in the re-
fuSal of his honor to- sustain his motion
In Shields V. Town of Durham, us N.
{. 45O this court unanimously decided
that Gully actions arising cX contractu
are contemplated under section ISL of
the Code, and that that section does
not apply to actions ex delioto. His
honor. after setting out the contentious
of the respective sides to he jury, In
structed them that, though she [plain-
tiff may have known of the existence
OF this defect prior to this time, yet thu,
court further charges you that she is
not REQUIRED to carry around In her
memory the defect in the street, and if
she may have known of its existence
at the time she did not think about It,
and was injured. that would not be con-
tributory negligence" We think there
was error in that instruction. The
court most probably had reference to
the decision in the case of Russell "
Town of Monroe. 116 n. C. 720 1t was
there held that all persons had n right
to assume that the authorities of town
have assumed ordinary care in the dis
charge of their duty, and that the
streets are in proper condition, and that
the plaintiff in that case was not re-
quired to see and treasure up in her
memory the location of every defective
place IN the sidtwalk which she had or
might have seen in the day time, nor
was she expected to see all such places"
But in that case the plaintiff herself
testified that she had been living in
Monroe only one year. and had been up
town very little, and had never seen
the /hole before. In the case before us
the plaintiff had been long n resident
of Marion, and had been thoroughly
familiar with the walk, having Travelled
1t hundreds OF times. as she testified.
Now. If she knew that the hole was in
the path. and at night walked along IT,
and. through forgetfulness. carelessly
walked into it, she neSligently contrib
lsted to her own Injury. 1t was not rea-
sonable care on her part to forget such
a menace to her safety; and, even If ii
should be conceded that, If the town
was negligent. If she. through the
want of proper care ard prudence, con-
tributed to her injury. both parties
being negligent. she cannot recover.
But besides, e the authorities of
town make and keep In repair good
sidewalk on one side of n street, and
leave Oh the other side an abandoned
and neglected walk, and those facts are
known to person who chooses, in the
night time, to walk along the neg
lected path. instead Of upon the safe
WalRWay, and Such persons he injured
by reason of a defect in the path along
which he chooes to walk. then there is
contrbutory negligence on the part of
the injured person, to say the least
and there can be no recovery for the
injuries sustained. For the error in the
charge of the court as pointed out there
muat be new trial.
STROUSE V. LANCTOT.