(charging the Jury.)
We have been asked to charge upon the law governing the case. Fortunately every point raised has been decided by the Courts of this State, and is now well settled law.
Pennsylvania Avenue is a public street and highway of this City. The Mayor and Council of Wilmington, the defendant is charged with its maintenance. It is the duty of the City to see that it is in a safe and proper condition for public use. The City *135is bound to perform this duty with diligence, without negligence, and in entire fidelity to its inhabitants. This being the duty of the City the plaintiff had a right to assume, that the avenue was in a reasonably safe and passable condition, and it was not his duty to be searching for obstructions or holes. Robinson vs. City, 8 Houst. 414 ; Anderson & Son vs. City, id. 516.
The law, however, imposes duties also on travellers using the public streets. They must use all reasonable care and caution to avoid -danger. They may not carelessly run into danger, and then make others pay for their own negligence.
If the cavity or depression on that night, was guarded by barriers and danger lights visible to the plaintiff, provided he had used reasonable care in looking, but not so looking, he drove carelessly into the opening or drove carelessly along with his attention directed elsewhere, then he took the risk, was guilty of contributory negligence and may not recover even if the City were negligent.
If you believe from the evidence, that the city was negligent in the construction of the man-hole; that it did not use due care and skill in building it or in packing the earth around it, and that by reason thereof the earth fell in, and without fault or negligence on the part of the plaintiff in looking as he drove along, his carriage was thrown into the hole, and thereby the injuries complained of resulted, your verdict should be for the plaintiff. If however, you believe from the evidence, that the construction of the manhole, and the filling around it were properly done, and that the settling was not the City’s fault, your verdict should be for the defendant. Moreover, even if the construction of the man-hole, and the filling around it were defective, yet if there were lights and guards around or near the hole, giving warning of the danger, which the plaintiff might have seen if he had used ordinary care in looking; or if he was carelessly or negligently driving on the avenue, and the accident result from such want of looking and care, your verdict should be for the defendant; for if the plaintiff contributed in any way to the injury he cannot recover in this case, *136however, much the City may have been guilty of negligence. The doctrine of proximate cause does not apply to this case.
Bird & Sanborn, for Plaintiff. Harman & Knowles, for Defendant.The plaintiff’s right to recover is based on the negligence of the defendant. The burden is upon him to show to your satisfaction by a preponderance of proof that the City was negligent. If he has proved that the City was negligent, and the City seeks to escape liabilities by relying upon the contributory negligence of the plaintiff, then the burden of proof is shifted, and it is incumbent on the defendant to prove such contributory negligence, by a like preponderance of proof. So if the defendant relies on an extraordinary storm as the cause of the injuries, it must make like proof that they resulted from a phenominal storm and not from its own negligence.
Applying the law as above stated, you are to determine whether the injuries complained of resulted from the negligence of the defendant alone. If so, your verdict should be for the plaintiff. On the other hand, you are to inquire whether they resulted from the carelessness of the plaintiff alone; or from the combined negligence of the plaintiff and the defendant. If the plaintiff alone was negligent, or if he contributed in any manner by his negligence to the injuries, your verdict should be for the defendant.
The testimony is conflicting. It is your first duty to reconcile it. If that is not possible, then you must be governed by the weight of the testimony, taking into consideration the number and the character of the witnesses on each side, their apparent interest in the suit, their intelligence, truthfulness and opportunities for obtaining correct information.
Should your verdict be for the plaintiff, the amount should be such sum as would be a just and reasonable compensation for his loss and injuries as proved on that witness stand. If for the defendant, then simply for the defendant.
Verdict for the defendant.