Kent v. Mayor of Wilmington — 12 Del. 397

Majority

p. 397

Daniel H. Kent v. Mayor and Council of the City of Wilmington.

Headnote

Municipal Corporation—Care of Streets—Diligence.

It is the duty of an incorporated city to keep its streets in a good and safe passable condition; and in regard to the work in relation to said streets the same degree of diligence is required as a good business man would show under like circumstances.

(New Castle,

December 3, 1886.)

Action on the case for damages sustained on Fourth street

p. 398

in the City of Wilmington by reason of it being left in such bad condition after putting in a pipe and filling up the excavation, that a pair of the plaintiff’s horses and his double carriage were seriously damaged by it.

Daniel H. Kent testified that on the thirteenth day of August, 1885, a little after dark in a rain, I was coming into the city with Mr. Voshell and my driver and while driving at a jog trot between the rails of the railroad on that part of the street, one of my horses suddenly began to sink into the road, and then the other, until both sunk together between the rails and the front wheels and axle of the carriage with them up to the hubs of the wheels. The horses after struggling to extricate themselves from the position, by holding them in by the rains, became quiet, and after no little .labor and effort were extricated from it. Both of them and one in particular, were seriously and permanently injured by the accident. When'it occurred they were worth a thousand dollars and I would not have sold them for that unless in particular need of money; they were not worth after it more than two hundred. There had been a heavy rain that afternoon. 1

Wm. H. Voshell and his driver confirmed the testimony of the preceding witness.

The evidence on behalf of the defendant was to the effect that the Water Department were laying a water drain across the street at that place and dug a trench for that purpose about nine feet long and about two feet and a half wide and four and a half to five feet deep. It was filled in with earth and covered over with macadam; the whole job was done and finished in a workmanlike manner.

Harry Emmons, for the plaintiff:

The city is liable for the damage by reason of the negligence of its servants. The city ordinance requires contractors or builders who have permission, among other things, to make excavations in the streets, to place danger signals consisting of red lanterns at either end of the excavation during the night time, which clearly indicates a recognition on the part of the City Council of the prudence and propriety and the necessity of such danger signals in such a case for the protection of the public.

p. 399

Henry C. Turner, for the defendant:

If the accident was the result of the extraordinary rain that fell that afternoon and evening, the city was not liable for the injury.

charged the jury: The duty of the city is to keep the streets of it in a good and safe passable condition. The degree of diligence required of the city in the case of such work as was done in filling up the trench cut on Fourth street in August, 1885, for the purpose of laying a water pipe, is such and no more, as that which a good business man would have shown under like circumstances, Whar. on Neg., Sec., 48. The want of such diligence is ordinary negligence, Ibid., 49.

Verdict for plaintiff.