Mayor And Council of Wilmington v. Ewing

• Decision Date: 18 April 1899
• Court: United States State Supreme Court of Delaware
• Parties: THE MAYOR and COUNCIL OF WILMINGTON, defendants below, plaintiffs in error, v. LUTHER W. EWING and SYDNEY E. EWING, his wife, plaintiffs below, defendants in error

43 A. 305

18 Del. 66

THE MAYOR and COUNCIL OF WILMINGTON, defendants below, plaintiffs in error, v. LUTHER W. EWING and SYDNEY E. EWING, his wife, plaintiffs below, defendants in error

Supreme Court of Delaware

April 18, 1899

Supreme Court, June Term, 1898.

WRIT OF ERROR to the Superior Court of the State of Delaware, in and for New Castle County.

At the November term of the Superior Court of New Castle County 1896, one Sydney E. Ewing and Luther W. Ewing, her husband brought an action of trespass on the case against "The Mayor and Council of Wilmington" for injuries alleged to have been received bye the said Sydney E. Ewing, by her stepping into a partly open gutter plate on the northerly side of Ninth street between Shipley street and Orange street in the said City of Wilmington, and recovered damages therefor in the sum of five thousand dollars.

There was no evidence that the said gutter-plate was placed on said sidewalk by the city or any of its authorized agents, or that the defective condition of the same, or of said sidewalk, was caused by the city or any of its authorized agents, so that the main question involved was, whether the city--the Mayor and Council of Wilmington--in view of the above facts, was legally liable for the injuries alleged to have been thus received; the statute governing such cases being as follows:

"The owner of any premises fronting upon any footways shall be solely responsible for any damage that may result to persons or property by reason of any hole, excavation or obstruction in or upon such footways, or from any defective condition of such footways; Provided, however, that such hole, excavation or obstruction or other defective condition of the footways aforesaid is not caused by the city or any of its authorized agents."

18 Del Laws., 889.

The assignment of errors will appear in the argument of counsel for appellant.

Robert G. Harman, for plaintiff in error:

(1) The Court erred in charging the jury as follows:

"It is vested with the power of taxation and does levy and collect from its citizens (and there is no limit on this power) such sums as are necessary for the purpose," that is for the sidewalks.

Charter Secs. 119-120-121.

Sidewalks. Assessment vs. Property for cost.

Charter, Sec. 118. Charter, p. 244.

Streets. Taxation.

Elliott on Roads and Streets, 370; 2 Dillon, Sec. 778; 2 Beach, Sec. 1074.

(2) "The said owners can only repair the pavements or gutters by the permission of the city corporation."

Charter, Secs. 119-120-121.

(3) "We consider that duties once imposed and liabilities incurred by accepting and acting under an act of incorporation cannot be divested save the right to alter or amend be in the Constitution, or it affirmatively appear that the city has expressly agreed to such amendment, and should an act be passed not having such exception inserted, the incorporators having accepted without such reservations have no right to claim the benefit thereof."

Coyle vs. McIntyre, 7 Houst., 44, at 100.

(4) The Court erred in refusing to charge the jury as prayed for by the defendant below as follows:

"If the jury believe that the defective condition of said sidewalk (if said sidewalk was defective) was not caused by the city or any of its authorized agents, then its verdict must be for the defendant, and the burden is upon the plaintiff to prove that the city or some of its authorized agents made said sidewalks so defective by a preponderance of evidence."

(5) The Court erred in charging the jury as follows:

CULLEN, J., charging the jury:

"Gentlemen of the jury:--This is an action on the case brought by the plaintiffs, Luther W. Ewing and Sydney E. Ewing, his wife against 'The Mayor and Council of Wilmington,' to recover damages alleged to have been received by Sydney E. Ewing on the night of the eighteenth day of October, 1894, by stepping into an opening in the gutter-plate, which extended over a gutter in the sidewalk or pavement on the north side of West Ninth street, between Shipley and Orange streets, which opening existed, and was allowed to continue by reason of the negligence of the defendant. The plaintiffs contend, that there was across the pavement located on the north side of West Ninth street between Shipley and Orange streets, a gutter extending from the building to the curbstone on the street twelve feet in length, five and three-quarter inches wide and four inches deep, square in the bottom, which was covered by an iron gutter-plate being in two pieces and joining together about the centre of the pavement; that several inches of the gutter-plate next to the house, and a small piece next to the curbstone were broken off. That in the exercise of due care and diligence the said Sydney E. Ewing with her friend, Mrs. Dora Schultz, shortly after ten o'clock on the night of the eighteenth day of October, 1896, were walking over the said pavement, crossed by said gutter; that the night was dark, and no light sufficient to show an obstruction existing on said pavement, and while so passing over the same, the said Sydney E. Ewing stepped into an opening made by the slipping or sliding apart of the two sections of said gutter-plate, midway of said pavement; that the heel of her shoe passed through the opening made by the separation of the gutter-plates, into the gutter, some four inches deep, and thereby she sustained not only immediate, but permanent injuries of such a nature and character as to seriously affect her for life.

"It is contended on the part of the defendants, that there was no dangerous obstruction existing over said pavement by reason of said gutter-plate placed across said gutter and that if such existed, it was not occasioned by their fault or negligence. Defendants further contend that they are not responsible or liable for any injury that may occur to persons passing over the footways fronting the property of private individuals, but that the owner is wholly responsible under the provisions of an act of Assembly passed the 24th of April, 1889, for any damage that may result to any person by reason of any hole, excavation or obstruction in or upon such footway, or from any defective condition of such footway; provided such defects are not caused by the city or its authorized agents. The defendants contend that any defects that existed were not caused by it or its authorized agents.

"Having thus briefly stated the grounds upon which the plaintiffs claim a verdict at your hands, and the reason upon which the defendants claim there is no right of recovery, we now proceed to charge you as to the law which we think applies to this case, and to the law as laid down, you are to apply the facts, which it is your sole province to decide.

"The law in this State relative to the liability of a municipal corporation, such as the defendants in this case, with reference to negligence, by which an injury may occur, is so well settled that it is hardly worth while to refer to the adjudicated cases, and I will only state the results. 'Tis the duty of the Street and Sewer Department acting under such corporation, having entire jurisdiction and control within the limits of said city of the streets, squares, lanes, walks, or alleys thereof, (said jurisdiction and control to extend 'from building line to building line') to keep the same in good repair and condition. They are bound to exercise due care and diligence that no dangerous holes, obstructions, or anything which may cause injury to persons, shall exist in the streets, pavements, lanes, or footways where the public have a right to travel night or day. They are not bound for any injury accruing from the act of God, as washouts from sudden storms; provided they have a reasonable time to repair, but if after a reasonable time and notice, they neglect, they are liable, and should a defect exist constituting danger in any street, footway, etc., and the same be not repaired in a reasonable time, the law presumes notice and the corporation would be liable.

"Notice may be actual, as where it is by word or writing, of a dangerous place or obstruction in the streets, footways, etc., given to the corporation; or it may be constructive, as where a defect exists for an unreasonable time, it being the duty of the corporation to look after defects and remedy the same, it is presumed to know if such exist. The length of time to repair defects in streets, sidewalks, etc., would depend upon the extent of work to be done, but in one of our decisions two months is mentioned. The city is bound to keep in good and safe order and repair, the streets, sidewalks, etc., so that they may be reasonably safe for all persons to pass and repass, day or night. The city under its charter having assumed the duties and liabilities therein imposed, our courts by a long line of uniform decisions have clearly defined what those duties and liabilities are.

"Having thus stated the law it becomes our duty to state to you what facts must be proved to your satisfaction by a preponderance of proof to enable the plaintiffs to recover.

"You must be satisfied, that the injury occurred within this city on a pavement or footway in said city on which persons regularly pass at the time of injury, and was used as a public footway. That the said Sydney E. Ewing was using due care and diligence in passing over said footway. That the gutter-plate from default of proper fastening on the gutter or from bad construction of the gutter, or want of repair, was dangerous in its character, and so remained for some two months, that the injuries complained of were the necessary consequences resulting from stepping into the opening occasioned by the separating of the sections of said gutter-plate, and that the said Sydney E. Ewing...