Kotowski v. Taylor , 31 Del. 430 ( 1921 )

Boyce, J.

This action is based upon negligence. The burden of maintaining the negligence alleged in the declaration rests upon the plaintiff. If it has been shown that the defendant is guilty of the negligence complained of, he is liable; otherwise, no liability attaches to him. It has not been shown that the defendant was guilty of any fault of his own which directly led to the accident averred in the declaration. If it has been shown that the death of the child of the plaintiff resulted from a cave-in of the embankment over a cut-out made thereunder in taking sand or gravel from the bank, the evidence leaves no room for doubt that the cutout was not made by the defendant, or any one acting directly for him, but that it was made by some other person undisclosed by the evidence.

If the place of the accident was left in an unsafe condition by a stranger, it has not been shown that the defendant had actual knowledge thereof, or that the unsafe condition in and about the bank existed such a length of time prior to the accident as that the law will impute notice to the defendant. Without actual or constructive knowledge, no fault can be imputed to the defendant owner, unless he was bound in law to discover the cut-out in the embankment, and make the surrounding conditions safe. The evidence before the court does not show such a case as that the defendant owner of the gravel pit was bound at his- peril to discover the alleged unsafe condition therein and remedy it. The complaint against the defendant cannot be made to rest merely upon the fact that he was the owner of the premises at the time of the accident.

The plaintiff was a tenant of the defendant, living with his family on the premises, in view of the place of the accident, and within three hundred feet thereof, and, under the undisputed evidence, it.is the opinion of the court that he must be held to have been familiar with the surroundings, and, if there was a dugout in the bank, knowledge of its existence must be imputed to him; and, being charged with such knowledge, he cannot have a recovery in his own right for the loss of the services of his child, if, as it appears from the evidence in this case, he was guilty of negligence contributing to the accident. The turntable cases, relied upon in part by the plaintiff, were cases where the doctrine of attractive nuisances and the liability for the maintenance of such nuisances was laid down. Under all the facts and circumstances of this case, it is the opinion of the court that the doctrine of these cases has no application to this case. We regret to take the case from the jury, but for the reasons assigned, we are constrained to give binding instructions to the jury to return a verdict for the defendant.

Gentlemen of the jury: For the reasons stated in your hearing, we instruct you to return a verdict for the defendant.

Verdict for defendant.