Evening journal., 1896-03-20

which. while Fair, Favors the Claims
OF MRS. seward-oIty Solicitor Harman
Excepted to the Charge Miscellaneous
Court Business.
Judge Cullen charged the Jury I'm
msdlRtoly after Superior Court met
this morning. He said. In part, after
reviewing the causes leading TO the
suit and the evidence adduced during
the trial:
"The law In this state relative to the
liability OF municipal corporation such
as the defendant Ia this case. with
reference to negligence, by which an
injury may occur, Is so well settled
that II ls hardly worth while TO refer to
the Rdjddicatsd cases and | will only
state the results IL Is the duty OF the
Street and Sewer Department., acting
under said corporation. having entire
limits Of said city OF the streets,
thereof, said control 10 extend
from building line to building line. to
keep the same In good repair and oondi
ton. They are bound to exercise due care
and diligence, that no dangerous holes.
obstructions or anything which may
cause Injury TO p rsons shall exist In the
streets. pavements, lanes or footwsys
where the public has a right TO travel
night OF day They are not bound for
any injury accruing from the act
OF God, as washouts by sudden storm,
provided they have not had 4 reasonable
tlme TO repair. but II, after a reasonable
time aud notice they neglect they are
liable aud should a defect exist consti
tutlng danger Ia any street. footway
ETC.. aud the same be not repaired In a
reasonable time, the law presumes
notice, and the corporation would be
liable A mensurAte degree
Of care and diligence must be used In all
parts OF ths city in order TO insure the
safety OF the travelling public. The city
under it's charter having assumed the
duties aud liabilities therein imposed, our
courts by long line Of uniform decisions.
have clearly defined what those duties
and liabilities are as we have stated.
you must be satisfied that the injury
occurred on a footwaY In the city on
which persons regularly passed Rt the
time OF the injury and was used as a
public footwAy that Mary A. Seward
Was using due care and diligence In pass
ing over said fo3tway tAAt the hole or
excavation WAS dangerous In Its charac
ter and so remained for a month, aud
providing the injuries. complained Of we're
the necessary consequences reeulting
from stepping ia said hole. aud that the
said Mary A. Seward was, by the fall
thus occ lsioned, hurt and injured. II
these facts be satisfactorily proved from
the evidence produced 10 this case, your
verdict should be for the plaintiffs. mas
much as it establishes clear case Of
negligence on the part OF the city.
"But. should you be satli fsd from the
evidenos that Mary A. Seward was not
using due care and diligence. recklsssly
and carelessly, without proper caution
fell into this hole or excavation, she was
guilty Of contrlbutory negligence and
has no right to recover, IL matters not as
TO the character on nature Of
the place Again, II there was
no dangerous place, II the party com
planning suffered no injury, your verdict
should be for the defendant. The person
ls ever bound to use all necessary care
aud precaution to avoid danger. but Ia
passing over your streets and sidewalks
At night he has right to presume that
there are no secret ofhldden dAngera
I'VE now come to one other defense
made In this case, arising by reason OF a
statute passed by the Legisle
ture Of our state. April a. 1889 This
statute did not exist and has originated
since the decisions have been made de6n
ing the liabilities OF the city by reason Of
certain injuries caused to persons by
reason OF the city's negligence as laid
down by the courts
"No doubt the intention was TO relieve
~. It.I.I Il. 1. Al.
aud provisions OF It's charter our courts
had decided the city Was liable; that Is o
say, tho intent Of the act was TO relieve
the city from certain liabilities, which
our courts say IL had assumed
aud WAS bound for In damages. But can
W. 30 construe a statute, which ID
In direct opposition to the original mean
ing TO which 10 Is really a supplement.
We are 20 oonstrue charter, the charter
OF the city Of Wilmington, not an act OF
Assembly aud In SO doing, whether it be
the one or the other, the provisions OF
the constitution II they conflict or are
involved must be taken into consldera
ton TO guide us to a proper consideration
OF this subject.
Our constitution provides aud re-
serves no right OF power save to revoke a
charter. We consider the 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 tbs
constitution, and should an act bs passed
not having such exception Inserted
the incorporRtors having accepted
without such reservations, having nc
right to claim the benefit thereof This
position Is well settled. No decisions
have been cited in any way controvertine
the general doctrine. that parties &C
cepting an act Of Incorporation are bound
and held to It's provisions, uuless there
be a right to change or alter expressly
set forth In Its provisions.
"We therefore say to you, gentlemen
tof the Jury, that this act Of Assembly
lupon which the defense claims the
lplRintlf has no right to recover, Is. as
far as this case is concerned, unconsti-
tutioual and void, and presents nc
defense to this action.
IF, therefore. you are satisfied from
1.-THE evidence that the city. by It's agents,
caused said excavation or hole into which
MRS. Seward stepped, and canssd the in
Jury by digging the same, the defendant
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