Jenkins v. Mayor of Wilmington

94 A. 768, 28 Del. 471, 5 Boyce 471, 1915 Del. LEXIS 29

• Court: Superior Court of Delaware
• Decided: June 14, 1915
• Status: Published

Opinion

Heisel, J.,

delivering the Opinion of the court:

[1] The evidence in this case as to the defect in the crossing showed there wás a depression about one inch deep, worn there by travel, and in area somewhat larger than an ordinary writing tablet, where the water would lie from rain or melting snow. Such depression is clearly not sufficiently dangerous to charge the defendant with negligence for allowing it to remain, under ordinary circumstances.

[2] If there was an accumulation of water in the depression which afterwards became ice, and if it thereby became a dangerous thing to travel over the crossing, it has not been shown that the defendant had actual notice of its condition, nor has it been shown that it was permitted to remain there a sufficient length of time to impute notice to the defendant and thereby charge the defendant with the duty of removing it.

After carefully considering the evidence, in the length of time we had for considering it, we feel constrained to grant the motion for a nonsuit, and therefore order a nonsuit.

Mr. Garrett:—We decline to take a nonsuit.

Heisel, J., continuing, directed the jury to return a verdict for the defendant.

Verdict for defendant.