Schelich v. Mayor & Council of Wilmington

Citations

• 24 Del. 57
• 1 Boyce 57
• 74 A. 367
• 1909 Del. LEXIS 35

Syllabus

<p>Municipal Corporations—Care of Streets—Defects in Streets— Notice—Cause of Defects—Negligence—Burden of Proof— Evidence—Preponderance—Measure of Damages to Property.</p> <p>1. The Mayor and Council of Wilmington, by its duly authorized agents, has control of the streets of the city of Wilmington, and it must use reasonable care, proportionate to the danger liable to ensue from its omission to do so, to keep its streets safe for persons driving or walking thereon.</p> <p>2. If a traveler, in the exercise of reasonable care, does not see or know that a street is in a dangerous condition, he may assume that the corporation has done its duty to keep the street in a reasonably safe condition.</p> <p>3. If a defect in a street was not caused by an authorized agent of the corporation, it is not liable for injuries resulting therefrom, unless it had actual notice thereof, or by the exercise of reasonable care should have known of it, but if the defect was caused by an agent of the corporation no notice whatever is required.</p> <p>4. If the agents of the corporation had notice of the condition of a street with respect to drainage before a ditch was dug, which was subsequently filled, by the agents of the corporation, the jury may take such condition into consideration in determining whether the ditch was negligently filled and packed.</p> <p>5. If the defect in a street, where an accident occurred, was caused by an extraordinary rainfall which could not reasonably have been foreseen, the corporation is not liable for injuries resulting therefrom, because the damage in such event, it is said, resulted from an act of God, and not from the negligence of the corporation.</p> <p>6. Negligence is never presumed; the burden of proving it rests upon the plaintiff.</p> <p>7. In a civil action, the verdict should be for that party in whose favor is the preponderance of evidence.</p> <p>8. In an action to recover for injuries to property, alleged to have been caused by negligence,