George E. Lloyd, Respondent, v. The Village of Walton, Appellant

George E. Lloyd, Respondent, v. The Village of Walton, Appellant. Negligence—permitting a drain to be obstructed by an eight-inch water pipe placed in the middle thereof—: the use of a crosswalk flooded with water .is not contributoi'y negligence. A village which, for-a period of five years, allows a water company to obstruct a drain, built to- carry off surface water accumulating on a street corner, by placing an eight-inch pipe in the middle thereof, with knowledge that by reason thereof the corner was flooded and the crosswalk was concealed by water at various times during the year, may properly be found to have been negligent. A pedestrian, having a limited acquaintance with the locality,, who attempts to walk on a crosswalk extending diagonally across the street at a-time when the crosswalk is entirely concealed by the accumulated surface water, is not, as a matter of law, guilty of such negligence as will preclude him from recovering damages against the village for personal injuries sustained in consequence of his stepping off the edge of the crosswalk into the gutter. Appeal "by the defendant, The Village of Walton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Delaware- on the • 16th day of June, 1900, upon the verdict of a jury for $640, and also from, an order bearing date the 17th day of May, 1900, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages for an injury to the plaintiff by reason of the defendant’s negligence,-' The negligence claimed is the suffering of an obstruction in a drain or sluiceway carrying off the surface water of a street, by reason of which' obstruction the water accumulated to such an extent as to cover the crosswalk at the-northeast corner of" the.intersection of Liberty and .. Meade streets' in the village b-f.'Walton, rendering the passage dangerous for those having occasion to use such crossing. Meade street runs east and west- through said village, and Liberty street north and , south. Liberty street, south of Meade street,'is about two feet wider than it is north of Meade street. The westerly line of Liberty street is unbroken. Upon the easterly side the street widens about two feet- as it passes Meade street going south. The. crosswalk, of Liberty street, as it crosses Meade street on the .easterly'side, runs. diagonally, and is two feet further toward the east upon the southerly side than upon the northerly side-of the street. Upon the 13tli day of May, 1897, about noon, the plaintiff approached Liberty street from.- the east upon, the north side of. Meade street. As he approached the corner he found that roily water had accumulated so that the crossing was entirely covered, and he was unable to see its location. He attempted to cross the crosswalk through the water, and in doing so stepped off the easterly edge of the crosswalk into the gutter, and falling, broke his leg. To recover damages for this injury this action is brought. E. 11. Hanford, for the appellant. T. Sanderson, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: By the verdict of the jury it is established that the plaintiff’s injury was caused by the defendant’s negligence without negligence on his part. There is no uniform rule, where streets widen, by which the crosswalk is carried in a direct line across, or by which it is carried diagonally from one sidewalk to the other. The plaintiff might well have assumed that the crosswalk would be a direct continuation of the sidewalk upon the easterly part of Liberty street. His acquaintance with the locality was limitéd. The crosswalk was covered with roily water and concealed. There was no fence upon the adjoining property so as to indicate clearly where the corner of the lot might be. It was not negligent then, as a -matter of law, for him thus to make the attempt to cross, and the finding of: the jury ■ that he was free from negligence cannot be said to be wholly without evidence. That the defendant was guilty of negligence was properly found. This sluiceway or drain, which was built to carry off the water accumulating at the northeast corner of Meade and Liberty' streets, had been obstructed by the water company, which placed in the middle of the sluiceway an eight-inch pipe. This obstruction the defendant had allowed to exist for upward of five year's with knowledge of the fact that by reason thereof this corner was flooded and the crosswalk thus concealed at the place in question frequently every year, and when covered a condition existed which imperiled the safety of travelers upon the street. That this constituted a want of reasonable care on the part of the village authorities would seem clear. ■ The fact that no like accident had happened within six ■ years, while some evidence in support of the defendant’s contention, is not sufficient to overturn the conclusion which the jury has. reached. The question was fairly and clearly submitted to the jury by the learned trial justice in a charge to which no exception was taken, and we see no reason to reverse their conclusion. Judgment and order unanimously affirmed, with costs.