below, and likewise to attack the validity of, owners are estopped, as was held by the the assessment made for the cost of the im- Chancellor, from denying the sufficiency of provements, on the ground of error in locat- the notice. ing the curb and gutter, and to effect the cancellation of the assessment as a lien against said lands. Answer was made to the bill, and the complainants thereupon moved for a decree, notwithstanding the answer. The Chancellor declined to decide the cause upon bill and answer, but ordered that it proceed to a hearing upon replications and proofs taken in the usual course. By agreement of counsel, the cause was heard by the Chancellor on oral testimony. In his opinion subsequently filed, the Chancellor reached the conclusion that the complainants were "not entitled to relief by way of injunction to prevent the sale, or to have the lien declared invalid, or to have relief," and dismissed the bill, with costs on the complainants. A decree was entered accordingly. Whereupon the complainants prayed an appeal which was granted. Eleven errors in varying forms were assigned. They raise three questions which for convenience are here stated in the order in which they will be briefly considered: [2] Third, the contention was made that the curb in question is set some sixteen inches, or more, east of the correct west line of Main street, in the town of Smyrna, and so within the street as to make it less than forty feet from curb to curb. This, it was insisted, makes the location of the curb unlawful, inasmuch as the said street was originally a part of the state road, known as the King's Highway, required by law to be maintained at a width of forty feet, and which the town council in setting the curb had no right to narrow. Assuming that the evidence adduced before the Chancellor shows that the curb does encroach upon the street to a slight extent, or to the extent claimed, have the complainants, by reason thereof, a right to the relief sought? Does such encroachment have the effect to invalidate and make void the assessment and the lien upon the lands therefor? If the town council had not power and authority under its charter, which was not considered by the Chancellor, to narrow the vehicular portion of said street for proper sidewalks, curbs and gutters because the 1. Whether chapter 537, volume 20, or chap- street was originally a county road, neverter 186, volume 25, Laws of Delaware, gov-theless the location of the curb and gutter erns in the assessment made for the cost of the curb and gutter. 2. Whether the preliminary notice given to the complainants to pave, curb and gutter was sufficient. 3. Whether the curb and gutter were so incorrectly located by the town authorities as that their cost cannot be assessed and made a valid lien upon the lands of the complainants, the abutting owners, and collected therefrom. First, the Chancellor rightly found that the town charter, contained in chapter 537, volume 20, and not chapter 186, volume 25, Laws of Delaware, applies to the assessment under consideration. did not affect the complainants by taking any portion of their land, or by imposing any additional cost upon them therefor. Under the law, the complainants were, after the required notice, bound either to pave, curb and gutter in front of their property, or suffer the town authorities to do so at their, the complainants', expense. If the curb was so set as to encroach upon the street or highway, as claimed, in front of the complainants' lands, which is not clearly established, yet there is nothing in the evidence to show that the complainants have, or will sustain, by reason of such encroachment, any injury or damage, or that the assessment had [1] Second, the notice (the character of been imposed under such circumstances, and which is shown in the opinion of the Chan-without authority of law, as clearly to encellor) which was served on the complainants, title them to relief in equity. It is, therefore, directing them to cause the paving, curbing the unanimous opinion of the court, as found and guttering, as required by prior ordinance by the Chancellor, that it was not shown of the town council, to be done, is, for the reasons given by the Chancellor, sufficient. Besides, in the absence of anything else affecting the validity of the assessment, the knowledge of the abutting owners, or of any one of them, that the improvements were being made and that the cost thereof was to be assessed against their land, the improvements being of special benefit thereto, the that the assessment for the cost of the curb and gutter was invalid, or unlawful, by reason of the alleged error in locating them; and that the complainants are not entitled to the intervention of a court of equity in the premises, and that the decree of the Chancellor in dismissing the bill, with costs on the complainants, should be, and it is, affirmed. (6 Boyce, 277) TAYLOR v. DU PONT BLDG. CORP. (Supreme Court of Delaware. Nov. 8, 1916.) 1. TRIAL 168 DIRECTION OF VERDICT WHEN PROper. When the evidence in a case is admitted to be true or not controverted and the law as applied to the evidence is productive of but one legal result, as a general rule it becomes the duty of the court to direct a verdict accordingly. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. 168.] 2. NEGLIGENCE 67-CONTRIBUTORY NEGLIGENCE-DUTY TO USE DUE CARE. Where deceased had unloaded a number of boxes onto an elevator in defendant's building and taken them to an upper floor and returned preparatory to loading more boxes in the elevator entrance which was lighted, it was his duty to see whether the elevator doors were open. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 90, 91; Dec. Dig. 67.] 3. NEGLIGENCE 72-CONTRIBUTORY NEGLIGENCE-DUTY TO USE DUE CARE-Sudden EMERGENCY. In such case, the falling of the boxes did not present a sudden emergency, calculated to produce fright or affect his judgment, so as to excuse his failure to observe that the elevator doors were open. 72.] [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 99, 100; Dec. Dig. 4. NEGLIGENCE 135-CONTRIBUTORY NEGLIGENCE-DUTY TO USE DUE CARE EVIDENCE. Evidence held to show that deceased, who fell into an elevator shaft in avoiding falling boxes, was guilty of contributory negligence so as to bar recovery. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 274-276; Dec. Dig. 135.] Error to Superior Court, New Castle County. Action by Ethel W. Taylor against the Du Pont Building Corporation. To review a judgment on directed verdict for defendant and order overruling motion for new trial, to which plaintiff took a bill of exceptions, plaintiff brings error. Affirmed. foot in the shortest dimension, three to three and a half feet wide and about four feet high, to the Atlas Powder Company, whose offices were located on the second floor of the Du Pont Building. That they had backed up their wagon to the vestibule leading to the freight elevator on the western side of the Du Pont Building, and had taken three of the cases from the wagon through the vestibule and placed them in the elevator, which was operated by one D., an employee of the defendant company; that when the cases had been placed in the elevator and the three men had entered the same either D., the operator, closed the elevator doors or the same were closed by one of the three at the operator's request, and the elevator proceeded to the second floor where the cases were unloaded, and the three men returned in the elevator to the vestibule. That upon their return they found that their team or wagon had been moved away from the elevator vestibule by employees of the F-M. Co., who had placed on the vestibule platform certain chairs and a desk preparatory to taking same up to the seventh floor of the Du Pont building on the elevator. That the driver who was delivering the cases to the Atlas Company remonstrated with the F-M. employees about moving his wagon before he had unloaded all of his cases and proceeded to back his team up towards the elevator vestibule, the F-M. employees in the meantime placing their furniture in the elevator and taking it to the seventh floor. That while the team was being backed the cases were standing on edge toward the front part of the wagon body which was, including the tailboard, about fourteen feet long; that Taylor was standing in the vestibule leading to the elevator either near the west wall or leaning against said wall and about central between the outer edge of the vestibule and the elevator The proceedings in the Superior Court here shaft, with his back toward the elevator follow: Argued before Boyce and Rice, JJ. W. W. Knowles, of Wilmington, for plaintiff. Robert H. Richards and Aaron Finger, both of Wilmington, for defendant. Action by Ethel W. Taylor, widow of Herbert S. Taylor, against Du Pont Building Corporation, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant corporation. Plaintiff claimed in her narr. damages for loss of support and for loss of consortium. The undisputed testimony was substantially as follows: That about three o'clock in the afternoon of February 8, 1915, Herbert S. Taylor, the plaintiff's husband, was employed and had been for two years, as a helper for T. Brothers, haulers of freight in the city of Wilmington, and was at the time assisting Z. and Q. also employed by said haulers, in delivering certain cases or boxes measuring one shaft looking towards the wagon as it backed up. That the platform or vestibule in which Taylor stood occupied a space of about seven by ten feet, with solid brick walls on the north and south sides, the vestibule doors which were open back against said walls, being located on the west or front and to the rear or east was the elevator shaft; that the, doors of the elevator when open overlapped the open vestibule doors; that at no time after coming down from the Atlas Powder Company in the elevator did Taylor look in the direction of the elevator shaft. That in backing the wagon one of the cases started to topple over towards the rear and the driver called to Taylor "Look out Red," just as the case fell in the wagon the end being within a few feet of the tailboard; that Taylor backed in the direction of the elevator shaft, the doors of which were open, and fell down the elevator shaft, from which he was later removed and taken to the Delaware Hospital where he died from the injuries received | ceased is presumed to have been in the exwithin a few hours thereafter. ercise of due care at the time of the accident. This is a presumption, however, which may be rebutted by evidence introduced by the plaintiff, as well as by evidence introduc It was not affirmatively shown that Taylor had ever been in the elevator before the day of the accident. It was also testified that the elevator vestibule was sufficiently light to dis-ed by the defendant. tinguish the features of a person, and light Applying these well settled principles of enough for Z. when standing several feet away on the outside to see through the vestibule and to observe that the elevator doors were open. Mr. Richards, at the conclusion of plaintiff's testimony, moved for a nonsuit, on the ground that the evidence of the plaintiff discloses clearly that the decedent was not at the time when the accident occurred in the exercise of due care and caution, but was guilty of contributory negligence, citing Dreier v. McDermott, 157 Iowa, 726, 141 N. W. 315, 319, 50 L. R. A. (N. S.) 566; Coleman v. Smith Co., 30 R. I. 250, 74 Atl. 915, 916; Saunders v. Smith Realty Co., 84 N. J. Law, 276, 86 Atl. 404; Neylon v. Phillips, 179 Mass. 334, 60 N. E. 616; Casey v. City of Malden, 163 Mass. 507, 40 N. E. 849, 47 Am. St. Rep. 473; Patterson v. Hemenway, 148 Mass. 94, 19 N. E. 15, 12 Am. St. Rep. 523; City of Peoria v. Adams, 72 Ill. App. 663, 668. Mr. Knowles, for plaintiff, contended that the evidence clearly showed that the defendant was guilty of gross negligence on its part in converting a place which the deceased had a right from his knowledge and experience to assume was a safe place, into one of great danger which negligence was the proximate cause of the decedent's injuries and death, and that there was no evidence that showed that the decedent was not in the exercise of due care at the time of the accident. law to the evidence of the present case, the court are clearly of the opinion that the deceased, standing for some time in the limited space between the storm doors and the elevator shaft, had the opportunity, if he had exercised the due care of a reasonably prudent person, to observe and know that the elevator doors were open. It cannot be urged for him that he did not know those things which by a reasonable use of his senses he should have known. If he did know or by the exercise of due care should have known that the elevator doors were open, then it was his duty to look where he was stepping as he approached the elevator shaft. It cannot be urged as an excuse for his not performing his duty in this respect that he backed into the elevator shaft. If he did look he must have seen that the shaft was open, or if he did not look as under the circumstances it was his duty to do, he was in either case guilty of contributory negligence in stepping into the open shaft. The court are convinced that it affirmatively appears from the evidence produced by the plaintiff, that her husband was guilty of contributory negligence proximately entering into and contributing to the accident which resulted in his death. Under our finding it is our duty to grant the motion and direct that a nonsuit be entered. Counsel for plaintiff refusing to accept a Rice, J., delivering the opinion of the nonsuit, the court by Rice, J., instructed the court: We have very carefully considered the arguments of counsel for and against the motion for a nonsuit, in connection with the evidence in the case, and we are now prepared to announce our decision. Negligence is the gist of this action brought by the plaintiff to recover damages for the death of her husband. Before she is entitled to recover, it is necessary for her to both allege and prove that the negligence of the defendant was the cause of the accident which resulted in her husband's death. Contributory negligence of the deceased when it appears from the evidence in behalf of the plaintiff, or when proved by the defendant, will defeat the plaintiff's right of recovery. It is a well settled principle of law in actions for personal injuries such as this, that a motion for a nonsuit will be granted when it affirmatively appears, from the evidence produced by the plaintiff, that the deceased was guilty of negligence at the time of the accident which proximately contributed thereto. jury: "For the reasons we have assigned in granting the motion for a nonsuit, which the plaintiff has refused to accept, we direct you to find a verdict in favor of the defendant." 5. That the court's finding on the motion for a nonsuit, being also the ground for the direction to the jury to bring in a verdict for the defendant, to wit: "The court are convinced that it affirmatively It is also a principle of law that the de- appears from the evidence produced by the plain tiff, that her husband was guilty of contributory | result, it becomes the duty of the court, in the negligence proximately entering into and contrib- administration of justice, to bind the jury to uting to the accident which resulted in his render a verdict accordingly. To do otherwise death" would simply entail a postponement of the proper decision of the case, by a retrial ordered on a motion for a new trial, in the event the jury found against the facts." was erroneous and contrary to the facts. 6. That the testimony introduced by the plaintiff in said cause was sufficient to entitle her to go to the jury upon the issue as to the defendant's negligence. 7. That, on the facts shown, the question of contributory negligence was a question for the jury. This is the general doctrine long recognized and adopted in this, and other states. In the case before us, the court below found that the husband of the plaintiff was guilty of contributory negligence proximately 8. That all of plaintiff's testimony excluded entering into and contributing to the accident by the court, to which exceptions were taken which resulted in his death, and for that by the plaintiff, was material to plaintiff's reason directed a nonsuit, as prayed for, but case and should have been admitted. the nonsuit being refused, the court instructFor which reasons, the plaintiff respected the jury to find a verdict for defendant, fully asks that the said verdict may be set which was done. aside and a new trial granted. Levin Irving Handy became associated with counsel for plaintiff. After hearing argument on the motion, and maturely considering the same, the court by Rice, J., announced: The court have considered the argument of counsel and the evidence in the case, and we are firmly of the opinion that the motion for a new trial should not be allowed. Whereupon counsel for plaintiff took a bill of exceptions. Argued before CURTIS, Ch., PENNEWILL, C. J., and CONRAD and HEISEL, JJ. [2, 3] This court has reviewed the evidence in this case with much care. The facts proven are unusually clear, and there is but little, if any conflict or confusion in the evidence produced. The husband of the plaintiff, after going up in the elevator in the Du Pont Building, and assisting in the unloading of certain articles, was brought down to the platform in front of the elevator on the first floor of the building, where he remained for some minutes while the business in which he was engaged was interrupted or delayed by the arrival and unloading of another team at the same platform. During this interruption The errors assigned were: That the court the husband of the plaintiff remained conerred (1) in directing the jury to return a tinuously on the platform in front of the eleverdict for the defendant; (2) in charging vator which occupied a space about ten feet the jury upon refusal of plaintiff to accept a wide, seven feet deep and ten to twelve feet nonsuit, as follows: "For the reason we have in height. The entire front of the space was assigned in granting the motion for a non-open. The time was the middle of the aftersuit, which the plaintiff has refused to ac- noon of a February day. There being amcept, we direct you to find a verdict in favor of the defendant"; and (3) in not submitting to the jury, under the testimony for the plaintiff, the question as to whether or not the defendant was guilty of negligence and liable to the plaintiff. CONRAD, J. (delivering the opinion of the court). The plaintiff in error appeals to this court on the ground that the court below erred in instructing the jury to find a verdict for defendant. It is difficult to lay down a fixed rule to govern the question as to when a court is justified in taking away a case from a jury, and when, on the other hand it is the duty of the court to allow the jury to pass upon the evidence. Both courts and text writers have found difficulty in marking the line that should control, so that courts are driven to deal with the individual cases as they arise. [1] In the case of P., B. & W. R. R. Co. v. Gatta, decided in this court in 1913, 4 Boyce (27 Del.) 56, 85 Atl. 729, 47 L. R. A. (N. S.) 932, Judge Woolley very clearly stated the law touching this question, in the following words: "When the evidence in a case is admitted, or not controverted, and when the law as applied ple light the surroundings could be clearly seen. While plaintiff's husband stood on the platform, certain articles of furniture were taken up in the elevator, and the team to which the deceased was attached as helper, was being backed up to the outer edge of the elevator platform, from which certain boxes were about to be unloaded. In all of this there was nothing to distract, disturb or excite the husband of plaintiff; on the contrary he had every opportunity to observe his surroundings, and to see the open doors of the elevator and the shaft or sink hole that went below the first floor. It is shown that as the wagon was being backed to the outer contained gave evidence of falling, and that door of the platform, certain boxes therein some one in charge of the wagon gave a cry of warning. The end of the wagon containing four boxes was four to five feet from Taylor when fully backed up to the entrance of the platform in front of the elevator. The boxes toppled over, but within the wagonbody, and seven or eight feet distant from Taylor. The boxes are described as being one foot thick, three and a half feet wide, and four feet high, and stood on end in the front part The plaintiff's counsel in their brief and by their arguments, seek to impress this court with the doctrine, well established in the law, that where one is required to act suddenly and without time for reflection and thereby is injured, he is not held to the same degree of care and caution as if he had time for deliberation. There can be no question but that this principle has been upheld by the courts of this state, and will be recognized as well founded law here and elsewhere. But in the pending case this principle is not applicable because the evidence fails to establish that Taylor, the deceased, was facing a danger that was either imminent or threatening. On the contrary it is clear that Taylor loitered about the platform for several minutes, a sufficient length of time for a load to be put in the elevator, and the ele vator to leave the lower floor and ascend; and time sufficient for the driver of the team on the outside to reach the heads of his horses and back them to the doorway. From Taylor's position he must have been seen all that was going on. The ascent of the elevator after being loaded with the desk, the open doors of the elevator shaft, the movements of the men and horses in front were all within reach of his observation. And being able to see, it is unreasonable to suppose he did not see. The duty was on him to see if he was in a position to see. Nor was there a sudden alarm or danger which tended to impel him to act quickly. There was no danfer such as to excite or disturb a reasonable man in his position. There was no emergency calculated to produce fright or affect the judgment. [4] With these facts so clearly established by the evidence, and not controverted, the conclusion is inevitable that the plaintiff's husband was not at the time of the accident in the exercise of that care and caution which it was his duty to observe in a place of danger such as confronted him; and that the trial court was justified in finding that Taylor's negligence was the proximate cause of the accident which led to his death. relieved from responsibility, if they were negligent in providing plaintiff a reasonably safe place to work, and that negligence caused the accident, or contributed to it. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 178, 179; Dec. Dig. 101, 102(1).] 278(3)—INJURY 2. MASTER AND SERVANT Evidence held to justify a jury finding that the negligence of defendant in not providing a reasonably safe place for plaintiff to work contributed to cause the accident. Servant, Cent. Dig. §§ 951, 959; Dec. Dig. Transferred from Superior Court, Hillsborough County; Branch, Judge. Action by Hassan Osman against the W. H. McElwain Company. Verdict for defendant, and case transferred from the superior court plaintiff's exception. Exception sus on tained. Case, for negligence. Trial by jury, and verdict for the defendants. The defendants were subject to and had not accepted the provisions of the Employers' Liability Act (Laws 1911, c. 163). The plaintiff was injured while in the employ of the defendants in their tannery, and while at work on certain vats. The jury took a view of the premises where the accident occurred. The plaintiff's evidence tended to prove that at the time of the accident, the plaintiff was at work, toggling hides on a wet, slippery floor, two feet from an uncovered vat filled with poisonous liquid; that the floor was on a level with the top of the vat; that a reeling machine which he had been working with, and had left north of the vat where he was working, started and came down its track, and hit him on the back as he was stooping over; that he turned around to stop the machine, and slipped and fell into the vat; that the reel started and run down on the track because it was in a defective condition; that there was a cover with which to cover the vat into which the plaintiff fell, and that before he began toggling the hides, he went to cover up the vat, but that his boss told him to leave it uncovered. The plaintiff in his opening claimed that the reel was defective, and that the place where the plaintiff was required to work was not reasonably 101, 102(1)-IN- safe, by reason of the wet, slippery floor, and JURY TO SERVANT-NEGLIGENCE. In a tannery servant's action for injuries the uncovered vats. The same grounds of sustained when struck by a reel while working negligence were also urged in the plaintiff's on a slippery floor and falling into a poisonous argument to the jury. The court instructed vat, although the reeling machine was not defective and defendants were not in fault because the jury that unless the plaintiff was pushit struck plaintiff, they would not thereby be ed into the vat by the reel, and that the reel The trial court therefore committed no error in giving binding instructions to the jury in favor of the defendant, and the judgment and proceedings of the court below are in all respects affirmed. (78 N. H. 597) OSMAN v. W. H. McELWAIN CO. (Supreme Court of New Hampshire. Hillsborough. Nov. 8, 1916.) 1. MASTER AND SERVANT |