Massey v. Worth

CourtSuperior Court of Delaware
Writing for the CourtHARRINGTON, J.
Citation197 A. 673,39 Del. 211
PartiesWILLIAM MASSEY v. EDWARD WORTH
Decision Date08 March 1938

197 A. 673

39 Del. 211

WILLIAM MASSEY
v.
EDWARD WORTH

Superior Court of Delaware, New Castle County

March 8, 1938


Superior Court for New Castle County, Action on the Case for Negligence, No. 56, March Term, 1937.

Case heard on demurrer to the plaintiff's declaration.

That declaration contained three counts, and the first count alleged, in substance:

That the defendant owned a certain dwelling house and premises on the northwest side of the State Highway, leading from Wilmington to Philadelphia, in Brandywine Hundred, New Castle County, Delaware; that there was a footway or sidewalk on the north-westerly side of the said State Highway, and along the defendant's premises; that there was a certain road or driveway leading from the State Highway in question, over and across the said footway or sidewalk into the said premises and dwelling house of the said defendant; that it was the duty of the said defendant, the owner of the said dwelling house and premises, to so use the same, and the said road or driveway leading to the said premises and dwelling house thereon, as not to endanger the use of the said footway or sidewalk by persons lawfully passing and repassing over it; that on the Second day of February, A. D. 1936, the said defendant, well knowing the premises, and not regarding his duty in that behalf, and while the owner and occupant of the said dwelling and premises aforesaid, wrongfully and unjustly used, or permitted to be used, the said road or driveway leading into his said premises by the passage of vehicles along and over it, so that at the place where it crossed over the said footway or sidewalk the natural accumulation of snow on that footway or sidewalk became and "was packed down and made smooth and slippery ice"; that because of said use, the said footway or sidewalk was thereupon made slippery and dangerous for public travel, all of which was well known, or should have been known, to the defendant; that on the day and year aforesaid, William Massey, the plaintiff, was then and there lawfully walking on the said footway or sidewalk, and was ignorant of its dangerous condition; that by means and in consequence of the said negligent and improper conduct of the said defendant, in that respect, the said William Massey then and there slipped and fell and was injured, etc.

The second count was substantially the same as the first, except it, also, alleged that the defendant "failed to remove or abate the said dangerous or slippery condition of said footway or sidewalk, within a reasonable time after he knew, or should have known, of the creation of said dangerous and slippery condition."

The third count was, also, substantially the same as the first, except it further alleged that the defendant "wrongfully and unjustly failed to take such precautions or safeguards in the use of said road or driveway leading into the dwelling and premises, as aforesaid, at the place where such road or driveway crossed over the said footway or sidewalk, as to prevent the natural accumulation of snow upon said footway or sidewalk from being packed down and made smooth and slippery ice, by the passage of vehicles along and over" it.

The defendant demurred specially to each count of the plaintiff's declaration on several grounds, but the only ground relied on was that none of them stated a cause of action against him.

The demurrer to each count of the plaintiff's declaration is sustained.

David F. Anderson (of Ward and Gray) for plaintiff.

William H. Bennethum (of Marvel, Morford, Ward and Logan) for defendant.

HARRINGTON, RICHARDS and SPEAKMAN, J. J., sitting.

OPINION [197 A. 674]

[39 Del. 215] HARRINGTON, J.

This case is before us on a demurrer to the plaintiff's declaration, and the question to be determined is whether it appears from it that he has a cause of action against the defendant. [197 A. 675]

The first count of the declaration alleges, in substance, that on February 2nd, 1936, the defendant was the owner and occupant of a certain house and lot abutting on a sidewalk in and along a specified public highway; that there was then a natural accumulation of snow on that sidewalk; that the defendant's driveway, leading from his property to the public highway, crossed it, and he used and permitted that portion of the sidewalk crossed by his said driveway to be used by the passage of vehicles over it, so that the snow thereon became and was "packed down and made smooth and slippery ice"; that the plaintiff was a pedestrian using that sidewalk, and by reason of its dangerous and slippery condition, caused by the improper and negligent acts of the defendant, fell and was injured.

The second count not only alleges the same facts, but also, alleges that it was the duty of the defendant to remove or abate the dangerous and slippery condition of the said sidewalk, so caused by his use, or permitted use of it, within a reasonable time after he knew, or should have known of that condition.

The third count alleges substantially the same facts, but further alleges that the defendant failed to use precautions to prevent the natural accumulation of snow on the sidewalk in question, and its subsequent "packing down" by his use, or permitted use of it.

[39 Del. 216] Generally speaking, "If an individual, whether the adjoining owner or not, or whether the fee in the public way is in himself or in the public, does any act which renders the use of the street hazardous, or less secure than it was left by the proper public authorities--as by excavations made in the sidewalks, or by unsafe hatchways left therein, or by opening or leaving open areaways in the travelled way, or by undermining the street or sidewalk--he commits a nuisance, and he is liable to any person who, while exercising due care, is injured in consequence." 3 Cooley on Torts, 4th Ed., § 452; see, also, Mullins v. Siegel-Cooper Co., 95 A.D. 234, 88 N.Y.S. 737; City of Seattle v. Puget's Sound Improvement Co., 47 Wash. 22, 91 P. 255, 12 L. R. A. (N.S.) 949, 125 Am. St. Rep. 884, 14 Ann. Cas. 1045; Louth v. Thompson, 17 Del. 149, 1 Penne. 149, 39 A. 1100.

An abutting owner or occupant of property may, therefore, be liable at common law for injuries caused by his own wrongful act in accumulating snow or ice upon a sidewalk adjoining his premises. Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N.S.) 615, and note; Aull v. Lee, 84 N.J.L. 155, 85 A. 1018; Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A. L. R. 1357; 43 C. J. 1106.

He may, also, be liable for injuries caused by an artificial discharge of water from his premises to the sidewalk at a time when it would naturally freeze and make such sidewalk slippery and dangerous for public travel. Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N.S.) 615; Aull v. Lee, 84 N.J.L. 155, 85 A. 1018; Allen v. Salmansohn, 254 Mass. 500, 150 N.E. 299.

As the plaintiff's...

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5 practice notes
  • Franzen v. Dimock Gould & Co., No. 49877
    • United States
    • United States State Supreme Court of Iowa
    • February 9, 1960
    ...his shoes.' Den Braven v. Public Service Electric & Gas Co., 115 N.J.L. 543, 181 A. 46, 47. 'See, also, Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122, 16 N.E.2d 653; McDonough v. City of St. Paul, 179 Minn. 553, 230 N.W. ......
  • Johnson v. Gulf Refining Co.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 28, 1956
    ...See, also, Daly v. Mathews, 49 Cal.App.2d 545, 122 P.2d 81; Swenson v. LaShell, Colo., 195 P.2d 385; Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, 301 Mass. 122, 16 N.E.2d 653; Abar v. Ramsey Motor Service, 195 Minn. 597, 263 N.W. 917; Weiga......
  • Rocci v. US, Civ. A. No. 87-132-JLL.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • June 8, 1988
    ...Schreppler v. Mayor and Council of the Town of Middletown, 52 Del. 178, 2 Storey 178, 154 A.2d 678, 679 (1959). See also Massey v. Worth, 39 Del. 211, 9 W.W.Harr. 211, 197 A. 673, 675 (1938) (abutting owner is not liable for injuries resulting from failure to repair defect in sidewalk which......
  • Sawicki v. Conn. Ry. & Lighting Co.
    • United States
    • Supreme Court of Connecticut
    • February 17, 1943
    ...116 Conn. 307, 309, 164 A. 661; Delaware, L. & W. R. Co. v. Madden, 241 F. 808, 811, 154 C.C.A. 510; Massey v. Worth, 9 W.W.Har. 211, 39 Del. 211, 217, 197 A. 673; 43 C.J. 1104, § 1867. In the case of the Waterloo Bridge, Robbins v. Jones, 15 C.B.,N.S. 221, 143 Eng.Rep.R. 768 (1863), which ......
  • Request a trial to view additional results
5 cases
  • Franzen v. Dimock Gould & Co., No. 49877
    • United States
    • United States State Supreme Court of Iowa
    • February 9, 1960
    ...his shoes.' Den Braven v. Public Service Electric & Gas Co., 115 N.J.L. 543, 181 A. 46, 47. 'See, also, Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122, 16 N.E.2d 653; McDonough v. City of St. Paul, 179 Minn. 553, 230 N.W. ......
  • Johnson v. Gulf Refining Co.
    • United States
    • United States State Supreme Court (Kentucky)
    • September 28, 1956
    ...See, also, Daly v. Mathews, 49 Cal.App.2d 545, 122 P.2d 81; Swenson v. LaShell, Colo., 195 P.2d 385; Massey v. Worth, 9 W.W.Harr. 211, 39 Del. 211, 197 A. 673; Bamberg v. Bryan's Wet Wash Laundry, 301 Mass. 122, 16 N.E.2d 653; Abar v. Ramsey Motor Service, 195 Minn. 597, 263 N.W. 917; Weiga......
  • Rocci v. US, Civ. A. No. 87-132-JLL.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • June 8, 1988
    ...Schreppler v. Mayor and Council of the Town of Middletown, 52 Del. 178, 2 Storey 178, 154 A.2d 678, 679 (1959). See also Massey v. Worth, 39 Del. 211, 9 W.W.Harr. 211, 197 A. 673, 675 (1938) (abutting owner is not liable for injuries resulting from failure to repair defect in sidewalk which......
  • Sawicki v. Conn. Ry. & Lighting Co.
    • United States
    • Supreme Court of Connecticut
    • February 17, 1943
    ...116 Conn. 307, 309, 164 A. 661; Delaware, L. & W. R. Co. v. Madden, 241 F. 808, 811, 154 C.C.A. 510; Massey v. Worth, 9 W.W.Har. 211, 39 Del. 211, 217, 197 A. 673; 43 C.J. 1104, § 1867. In the case of the Waterloo Bridge, Robbins v. Jones, 15 C.B.,N.S. 221, 143 Eng.Rep.R. 768 (1863), which ......
  • Request a trial to view additional results

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