Cullen, J.,
(charging the jury.)
The law in this State relative to the liability of a municipal corporation, with reference to negligence, by which an injury may occur, is so well settled -that it is unnecessary to refer to the adjudicated cases. It is the duty of the Street and Sewer Department acting under the 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, and footways, where the public have a right to travel night or day. They are not bound for any injury resulting from the act of God, as washouts by sudden storms, provided they have not had 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 is liable. If the city allow and throw open to use a footway used by the public, it is not necessary that it should be paved, but the city is as much bound to keep such a passageway safe in the outskirts of the city, and fronting on lots not built upon, as in the crowded thoroughfares. It is true that greater care would be required in most frequented streets, but a commensurate degree of care and diligence must boused in all parts of the city in order to insure the safety of the travelling public. The city is bound to,keep in good' safe order and repair the streets 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, which are as we have stated.
[203]*203You must be satisfied, that the injury occurred within the limits of this City, on a footway on which persons regularly passed at the time of injury, and was used as a public footway; that the plaintiff Mary A. Seward was using due care and diligence in passing over it; that the hole or excavation which it is stated extended across the footway, was dangerous in its character and so remained for a month; that the injuries complained of were the necessary consequences resulting from stepping in such hole; and that the said Mary A. Seward was by the fall thus occasioned hurt and injured. If these facts be satisfactorily proved from the evidence, your verdict should be for the plaintiffs, inasmuch as it establishes a clear case of negligence on the part of the City. But should you be satisfied from the evidence that Mary A. Seward was not using due care and diligence, and recklessly and carelessly fell into this hole or excavation, she was guilty of contributory negligence and has no right to recover, it matters not as to the character or nature of the place. Again, if there was no dangerous place, or if the party complaining suffered no injury, your verdict should be for the defendant.
We must say to you in this connection, as to diligence and care in daytime and night, the person is ever bound to use all necessary care and precaution to avoid danger, but in passing over your streets and sidewalks at night he has a right to presume there are no hidden or secret dangers, and that streets and passages or footways without warning may be traversed safely, and should one in the night step into a hole carelessly existing from want of diligence on the part of the City, the City would be liable, though such a danger existing in the daytime one could see, and running into it would be contributory negligence. We have thus far spoken of the liabilities of the City corporation, with reference to the law heretofore as laid down by the decisions of our State Courts, which are uniform and agree with, in the main, the English and American decisions throughout this country, but we come now to one other defense made in this case, arising by reason of a statute recently passed by the Legislature of our State, 24th April 1889. This [204]*204statute did not exist, and has originated since the decisions have been made, defining the liabilities of the City by reason of certain injuries caused to persons by reason of City’s negligence, as laid down by the Courts. The defendant contends that, admitting all liability as laid down by the Courts heretofore, in cases of negligence charged, it amounts to nothing, inasmuch as the recent act of the Legislature changes the liability of the municipal corporation of the City of Wilmington, and shifts from it all liability for damages occurring in cases mentioned in the Act, to the owners of the premises fronting the place where injury occurred. In other words, the contention is that the meaning of the Act is, that it has by its terms, meaning and effect, relieved the city from all damages to which it was admitted the city was theretofore liable, and placed the same upon the owner of the premises or property fronting upon any footway etc., where injury has occurred. The plaintiff says this law or amendment to charter, is unconstitutional, utterly in derogation of the powers conferred by the charter of the city, and subversive of the imposition and liabilities imposed by charter. In order to determine this matter we must examine this Act, though the clause upon which the defense relies appears to be inserted in another Act, which in its meaning, as to the clause relied on, has no connection whatever with the spirit and meaning of the Act under consideration. We will, however, consider the latter Act as being separate and apart, and the question then comes, does it relieve the city from duties and liabilities heretofore imposed on it for which, our decisions say, it is liable.
The Act is in these words: “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 said 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.”
What does this Act mean? Ho doubt the intention was to [205]*205relieve the city of liability which by the terms and provisions of its-charter was held by our Courts to rest upon the city; that is to say, the intent of the Act was to relieve the city from certain liabilities, which our Courts say it had assumed and was bound for in-damages. But can we so construe a statute, which is in direct opposition to the original meaning of that to which it is really a supplement. We are to construe the charter of the City of Wilmington, not an Act of Assembly; and in so doing whether it be the one or the other, the provisions of the Constitution if they conflict with, it or are involved must be taken into consideration to guide us to a proper consideration of this subject. The City of Wilmington is-a corporation. The charter when granted imposed duties and liabilities ; they accepted the same, and for years have been acting thereunder, vested with the powers of taxation, and the Courts-have defined their powers and liabilities.
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Cullen, J.,
(charging the jury.)
The law in this State relative to the liability of a municipal corporation, with reference to negligence, by which an injury may occur, is so well settled -that it is unnecessary to refer to the adjudicated cases. It is the duty of the Street and Sewer Department acting under the 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, and footways, where the public have a right to travel night or day. They are not bound for any injury resulting from the act of God, as washouts by sudden storms, provided they have not had 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 is liable. If the city allow and throw open to use a footway used by the public, it is not necessary that it should be paved, but the city is as much bound to keep such a passageway safe in the outskirts of the city, and fronting on lots not built upon, as in the crowded thoroughfares. It is true that greater care would be required in most frequented streets, but a commensurate degree of care and diligence must boused in all parts of the city in order to insure the safety of the travelling public. The city is bound to,keep in good' safe order and repair the streets 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, which are as we have stated.
[203]*203You must be satisfied, that the injury occurred within the limits of this City, on a footway on which persons regularly passed at the time of injury, and was used as a public footway; that the plaintiff Mary A. Seward was using due care and diligence in passing over it; that the hole or excavation which it is stated extended across the footway, was dangerous in its character and so remained for a month; that the injuries complained of were the necessary consequences resulting from stepping in such hole; and that the said Mary A. Seward was by the fall thus occasioned hurt and injured. If these facts be satisfactorily proved from the evidence, your verdict should be for the plaintiffs, inasmuch as it establishes a clear case of negligence on the part of the City. But should you be satisfied from the evidence that Mary A. Seward was not using due care and diligence, and recklessly and carelessly fell into this hole or excavation, she was guilty of contributory negligence and has no right to recover, it matters not as to the character or nature of the place. Again, if there was no dangerous place, or if the party complaining suffered no injury, your verdict should be for the defendant.
We must say to you in this connection, as to diligence and care in daytime and night, the person is ever bound to use all necessary care and precaution to avoid danger, but in passing over your streets and sidewalks at night he has a right to presume there are no hidden or secret dangers, and that streets and passages or footways without warning may be traversed safely, and should one in the night step into a hole carelessly existing from want of diligence on the part of the City, the City would be liable, though such a danger existing in the daytime one could see, and running into it would be contributory negligence. We have thus far spoken of the liabilities of the City corporation, with reference to the law heretofore as laid down by the decisions of our State Courts, which are uniform and agree with, in the main, the English and American decisions throughout this country, but we come now to one other defense made in this case, arising by reason of a statute recently passed by the Legislature of our State, 24th April 1889. This [204]*204statute did not exist, and has originated since the decisions have been made, defining the liabilities of the City by reason of certain injuries caused to persons by reason of City’s negligence, as laid down by the Courts. The defendant contends that, admitting all liability as laid down by the Courts heretofore, in cases of negligence charged, it amounts to nothing, inasmuch as the recent act of the Legislature changes the liability of the municipal corporation of the City of Wilmington, and shifts from it all liability for damages occurring in cases mentioned in the Act, to the owners of the premises fronting the place where injury occurred. In other words, the contention is that the meaning of the Act is, that it has by its terms, meaning and effect, relieved the city from all damages to which it was admitted the city was theretofore liable, and placed the same upon the owner of the premises or property fronting upon any footway etc., where injury has occurred. The plaintiff says this law or amendment to charter, is unconstitutional, utterly in derogation of the powers conferred by the charter of the city, and subversive of the imposition and liabilities imposed by charter. In order to determine this matter we must examine this Act, though the clause upon which the defense relies appears to be inserted in another Act, which in its meaning, as to the clause relied on, has no connection whatever with the spirit and meaning of the Act under consideration. We will, however, consider the latter Act as being separate and apart, and the question then comes, does it relieve the city from duties and liabilities heretofore imposed on it for which, our decisions say, it is liable.
The Act is in these words: “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 said 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.”
What does this Act mean? Ho doubt the intention was to [205]*205relieve the city of liability which by the terms and provisions of its-charter was held by our Courts to rest upon the city; that is to say, the intent of the Act was to relieve the city from certain liabilities, which our Courts say it had assumed and was bound for in-damages. But can we so construe a statute, which is in direct opposition to the original meaning of that to which it is really a supplement. We are to construe the charter of the City of Wilmington, not an Act of Assembly; and in so doing whether it be the one or the other, the provisions of the Constitution if they conflict with, it or are involved must be taken into consideration to guide us to a proper consideration of this subject. The City of Wilmington is-a corporation. The charter when granted imposed duties and liabilities ; they accepted the same, and for years have been acting thereunder, vested with the powers of taxation, and the Courts-have defined their powers and liabilities. Are they not fixed ? The charter conveys rights, duties, obligations according to its special provisions, as ordered by the Constitution; by the charter or Act of incorporation, the incorporation received its life, breath and being; true it is the creature of the Legislature, the life giving power, but it must conform to the provisions of the Constitution,, else it would be void; but when consistent it speaks for itself. We say consistent with the constitution ; we are dealing with our own, not those of other States, to which I shall allude briefly hereafter. Our Constitution provides and reserves no right of power save to revoke. Now a charter as in this case, or Act of incorporation was granted, vesting certain imposed duties and liabilities; the city accepts, and then, by a subsequent Act of the Legislature, seeks to-limit the powers and liabilities defined by the Courts. Can this be done? It is said that there are no vested rights and no impairing of contract, which is expressly prohibited by the Constitution;, but we think the duties imposed and liabilities incurred, are co-extensive, and equal to bind the city corporation. 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, and should an act be passed. [206]*206not having such exception inserted, the incorporators having accepted without such reservations, have no right to claim the benefit thereof. This position is well settled by the main case called the “ Brooklyn ” case cited in argument in which the facts were very similar to those of this case. There the question arose as to the amendment of a charter, which it was contended could not be altered, parties having accepted and acted on it' but the Court on appeal said and admitted that aliunde the Constitution it could not be but inasmuch as the Constitution by its express terms allowed alteration and amendments, and as the same provisions were embodied in the charter, and so accepted, it could be amended. No decisions have been cited in any way controverting the general doctrine, that parties accepting an act of incorporation are bound and held to its provisions, unless there be a right to change or alter expressly set forth in its provisions, except cases where both parties expressly assent to such change. The cases cited for the defendant from Oregon and California have no relevancy to this case, the Oregon case by express terms being governed by statutes in that State, and the California case having reference to the city being joined with the county.
We therefore say to you, that this Act of Assembly is, as far as this case is concerned, unconstitutional and void and presents no defence to this action.
You will observe, that the Act, about which so much has been said, provides, that “ The owner of any premises upon any foot-ways shall be solely responsible for any damages,” etc., provided that the hole, excavation or obstruction, etc., is not caused by the city. Now, the question which arises here is one of fact, and is to be considered entirely independent of what we have said relative to the unconstitutionality of the said statute. If, therefore, you are satisfied from’ the evidence, that the city, by its agents caused the excavation or hole, by digging out the same, the defendant is clearly liable, and your verdict should be for the plaintiff, without regard to the provisions of said Act, inasmuch as the said Act has [207]*207no reference to cases of damage arising where same is caused by the act of the defendant.
With reference to damages and the amount thereof in case your verdict should be for the plaintiff, that is a matter solely and entirely within your province; you should give such a reasonable and fair compensation as you, in your sound judgment and discretion, think is proper and adequate to compensate the plaintiff for loss and damages sustained by reason of injury. Should your verdict be for defendant, you will simply say, we find for the defendant.
The Jury Disagreed.