Anderson & Son v. Mayor and Council of Wilmington

• Decision Date: 01 December 1889
• Citation: 19 A. 509,13 Del. 516
• Parties: ANDERSON & SON v. MAYOR AND COUNCIL OF WILMINGTON
• Court: Delaware Superior Court

19 A. 509

13 Del. 516

ANDERSON & SON v. MAYOR AND COUNCIL OF WILMINGTON

Superior Court of Delaware, New Castle

December 1, 1889

TRESPASS on the case for injury caused by flooding the cellar of plaintiff's store at corner of Delaware avenue and Jackson street.

Verdict for the plaintiff.

Levi C Bird and A. H. Sanborn, for the plaintiff:

The law of Delaware chartering the City of Wilmington expressly gives the city the control of the streets, and imposes upon it the duty of repairing the streets and removing nuisances therefrom.

Vol 17, Laws of Del., Page 435, Sec. 31.

The Street and Sewer Department as agent of the City now has the exclusive control of the streets.

Vol. 18 Laws of Del., Page 352.

I. A Municipal Corporation having by its charter the control of the streets is liable to any one injured without fault on his part, either in his person or property by defective and unsafe streets or sidewalks.

The Municipal Corporation is bound to keep its streets and sidewalks in good order and condition for the public.

Charge of Chief Justice Comegys in Robinson v. City of Wilmington, Feb. Term, 1889; Brown v. District Columbia, 91 U.S. 540; Gordon v. Richmond, 2 S E., 727; S. C. 2 Thomp. Neg., 678-691; 1 Sher. & Red. Neg., Sec. 289, p. 503; City Chicago v. Dalle, 5 N. E., 579; Glantz v. City South Bend, 6 N. E., 632.

II Where the duty of keeping its streets in a safe condition rests upon a Municipal Corporation it is liable for injuries to persons or property caused by its neglect, or omission to keep the streets in repair.

It is also liable for injuries occasioned by the wrongful acts of others provided the corporation had notice of the defects which caused the injury, or facts from which notice thereof may reasonably be inferred or proof or circumstances from which it appears that the defects ought to have been known and remedied by it.

2 Dillon Muns. Corporations, Sec. 1024; 2 Dillon Muns. Corporations, Sec. 1027; 2 Dillon Muns. Corporations, Sec. 1034; 1 Sher. & Red. Neg., Sec. 290-301; 2 Sher. & Red. Neg., Sec. 358-360; 2 Thompson, Neg., Page 766, and Note 8; 2 Thompson Neg., Page 753-754; 2 Thompson, Neg., Page 787-788; Cooley Torts, Page 625; Baltimore v. Pendleton, 15 Md. 12; Wendell v. Troy, 43 N.Y. 261; City Springfield v. Le Cloun, 49 Ill. 476; Starrs v. City Utica, 17 N.Y. 104-105-106-107-108; Hickock v. Trustees Plattsburg, 15 Barb., 427; Ct. Appeals, 16 N.Y. 161; Merrill v. Wilbraham, 11 Gray, 154; Dock v. East St. Louis, 685 Ill. 377; Nashville v. Brown, 24 Am. Rep., 289; Regna v. Rochester, 49 N.Y. 129; Boston v. City Syracuse, 36 N.Y. 54-58.

III. Municipal corporations owe a duty of active vigilence to the public in respect to the condition of highways under their control. They are bound to discover any defects therein within a reasonable time, although caused by the negligent acts of others. For practical purposes the opportunity of knowing in such cases stands for actual knowledge.

In each case it is for the jury to determine whether or not the city had notice.

2 Sher. and Red. Neg. Sec 369; 2 Thomp. Neg., page 762-763; Whittakers Smiths Negligence, page 257; 2 Dillon Municipal Corp. Sec. 1026, page 1050, and note page 1053; Shul v. Appleton, 49 Wic., 125; S. C. 5 N. W., 27; Colly v. Inhab. Westbrook, 57 Me. 181; Howe v. Plainfield, 41 N. H., 135; Springer v. Bowdingham, 7 Me., 442; Kuntz v. City Troy, 104 N.Y. 344; City Bermingham v. McCrary, 4 Southern R., 630; Pomfray v. Saratoga Springs, 104 N.Y. 459-465-470; City Chicago v. Dalle. 5 N. E., 578; Sullivan v. City Oshkosh, 13 N. W., 468; City Springfield v. Doyle, 76 Ill. 202; Merrill v. Inhab. Wilbraham, 11 Gray, 157; Moses v. City Troy, 61 Barb., 680; Bradbury v. Falmouth, 11 Me. 64.

IV. Where a municipal corporation permits a third person to interfere with the street over which it has control it is bound to exercise a supervision of the work, so as to prevent consequent injury, the same as if the work was done by its own agents for the benefit of the public.

Sher. & Red Neg. Sec. 358; City Bermingham v. McCrary, 4 S. R., 630-633-634-635; Boucher v. New Haven, 40 Conn. 457; Wendall v. Troy, 4 Keys, 261; Reported below, 39 Barb., 261; Baltimore v. Pendleton, 15 Md. 12; Hutson v. New York, 9 N. Y., 163; Reported Below, 5 Landf., 289; Brooks v. Somerville, 106 Mass. 271.

V. A Municipal Corporation having power to remove a nuisance, but neglecting so to do, is liable for injuries caused by such neglect.

2 Thomp. Neg., Page 741-753-754; Wharton Neg., Sec. 265; Baltimore v. Morrell, 9 Md., 160-173-174-175-178; Baltimore v. Pendleton, 15 Md. 12; City Alton v. Hopes, 68 Ill. 167; Wendell v. Troy, 4 Keys., 261; Slock v. East St. Louis, 85 Ill. 377; Lawrence v. Fairhaven, 6 Gray, 110; City Aurora v. Reed, 57 Ill. 30-33-34.

J. Frank Ball and Henry C. Turner for the defendant prays the Court to instruct the jury as follows:

First. That George B. Ward, a plumber, was acting under an independent contract to do the plumbing and make the connections with the Delaware Avenue Sewer for the purpose of draining the premises No. 1006 Delaware Avenue, and that the City of Wilmington had no control or management of the said work nor over the selection of the persons hired to execute the said work, and reaped no benefit from said work, therefore the relation of master and servant did not subsist between the Mayor and Council of Wilmington and the said George B. Ward, contractor aforesaid, and the City of Wilmington is not liable in law for the negligence, if any, of the said George B. Ward, contractor as aforesaid, whereby the premises of the plaintiffs were flooded on the night of December 31st, 1887, and the subsequent day, and this notwithstanding the said contractor received a permit from the Street and Sewer Department of the City of Wilmington to open the bed of Delaware Avenue for the purpose of laying the said drain.

Second. That the evidence offered in this case shows that the said George B. Ward, at the time of making the excavation in Delaware Avenue which is alleged to have been the cause of the injury in this suit complained of was acting under an independent employment, the Mayor and Council of Wilmington having no control over the mode and manner of work nor the selection of the workmen to execute the same, therefore the doctrine of respondeat superior cannot obtain as between the Mayor and Council of Wilmington and George B. Ward, contractor as aforesaid, and that this defendant is not liable in law for the negligence, if any, of the said contractor, whereby the premises of the plaintiffs were flooded on the night of December 31, 1887, and the subsequent day.

Third. The evidence offered in this suit discloses, that George B. Ward, a plumber, received a permit from the Board of Directors of the Street and Sewer Department of the City of Wilmington and thereupon opened the bed of Delaware Avenue for the purpose of making a drain connection from the premises 1006 Delaware Avenue to the sewer of the Delaware Avenue Sewer Company; that in making the excavation aforesaid, the said George B. Ward was exercising an independent employment for private parties and for private benefit; that the said George B. Ward was not in any sense acting as an officer, servant, or agent of this defendant, and that the granting of the permit did not in any sense make him such while engaged in such employment for private parties and for a private purpose; that this defendant is not shown to have had control over the mode and manner of the work nor over the selection of the workmen engaged in executing the same, so as to raise the relation of principle and agent, or master and servant, but the reverse of this is shown by the proof; that this defendant is not shown to have received such actual notice nor has a lapse of time been proved sufficient to imply notice of the dangerous character of the excavation in the street which would make the city responsible for the maintaining of a public nuisance; that the damage occasioned by reason of the negligence, if any of the said George B. Ward, contractor as aforesaid, or his employees in and about the excavation aforesaid on the night of the 31st day of December, 1887, or the subsequent day, is not imputable to the defendant and the plaintiffs cannot recover the same from the said defendant; and this notwithstanding any legal obligation which may exist obliging this defendant to keep its streets in good order and repair the purpose for which the excavation was made being a lawful one and the Board of Directors of the Street and Sewer Department a lawfully constituted agency of this defendant having the lawful right to grant such permit for the said lawful purpose.

1. A city having the power to build and construct sewers, has also the right flowing incidentally from that power of granting a permit to owners of abutting lots to open the bed of the highway to connect private drains with said sewers.

2. The giving of such permission is an exercise of power for which the corporation as a governing body is not amenable to an individual who may have suffered by the negligence of the lot owners or his employees in the manner of using the license and interfering with the street, provided such negligence act does not amount to a nuisance of which the city had actual or implied notice.

Shearman and Redfield on Nuisance, Sec. 263.

3. A Municipal corporation is not liable for the acts of persons it licenses to use its streets unless the thing authorized is intrinsically dangerous, or the Municipal authorities have notice of the negligence of its licensee.

4. The employer is not liable where the obstruction or defect in the street causing the injury is wholly collateral to the contract work and entirely the result of...