Hill v. Mckay , 31 Del. 213 ( 1921 )

Pennewill, C. J.,

charging the jury:

This is an action on the case brought by the plaintiffs against the defendant to recover damages alleged to have been sustained because of the defendant’s failure to perform his covenant to surrender the demised premises in as good order and condition as they were when he entered into possession, reasonable wear and tear and accidents happening by fire or other casualties excepted.

The plaintiffs claim that by reason of the defendant’s negligence the pipes and radiators in the house bursted from freezing or other cause, and the water system and other parts of the property were damaged thereby.

The defendant denies that the damage complained of was caused by any negligence on his part. He' claims that he surrendered possession of the property to the owner December 12, 1919, and that it was then in better condition than when he entered into possession. A tenant is bound to treat demised premises in such a manner that no substantial injury shall be done to them, and so that they shall revert to the landlord at the end of the term unimpaired by any wilful or neglectful conduct on his part.

The .landlord has a right to depend to a reasonable extent on the assurance of the tenant, on leaving the premises, that he has left them in good and safe condition. But such assurance does not entirely relieve the landlord of the duty of exercising reasonable care in examining his property thereafter. This duty would depend in some degree upon the conditions existing after the surrender of the property, such, for example, as the condition of the weather and the time that has elapsed after the assurance of the tenant, that the property was left in good condition. What we mean is that the landlord is not absolved from all duty of looking after the preservation of his property between the ending of one tenancy and the beginning of another, when from weather conditions and lapse of time damage might occur. All that the relation of the tenant implies in this case is that the tenant, while using the property, and in leaving it, shall exercise reasonable care to prevent damage thereto.

In order to find against the defendant the jury must be satisfied that the damage was caused by the defendant’s negligence and during his tenancy.

If the jury believes that the defendant rented the property in question for ten or twelve days in December, 1919, and that he vacated same on December 12, 1919, pursuant to the terms of said renting and delivered possession of the property to the plaintiffs or to their agent in as good condition as he found it when entering into possession, then the verdict should be for the defendant.

There can be no recovery in this case unless it appears that the damage occurred by reason of the negligence of the defendant. The burden of proving neligence is on the plaintiffs and if they have not satisfied the jury by a preponderance of the evidence that the damages occurred by reason of the negligence of the defendant, there can be no recovery. The mere fact that the damage occurred is not sufficient to warrant the jury in finding that it resulted from the negligence of the defendant. In order to enable the plaintiffs to recover there must be evidence of negligence beyond that arising from the mere fact of the occurrence of the injury. Earle, appellant, v. Arbogast, 180 Pa. 415, 36 Atl. 923.

That in actions based on negligence, the burden of proof is on the plaintiff. Negligence, which is the want of due care or such care as an ordinarily prudent man would exercise under like circumstances, is never presumed. Kemp v. McNeill, 7 Boyce, 146, 104 Atl. 639.

If the jury should find for the plaintiffs, their verdict should be for such sum as they believe from the testimony will reasonably conpensate them for the damage to their property caused by defendant’s negligence. If they are not satisfied that the damage was caused by defendant’s negligence their verdict should be for the defendant.

Verdict for defendant.