Balls v. Woodward

• Decision Date: 09 August 1892
• Docket Number: 1,926.
• Citation: 51 F. 646
• Parties: BALLS v. WOODWARD et al.
• Court: U.S. District Court — District of Oregon

51 F. 646

BALLS v. WOODWARD et al.

No. 1,926.

United States Circuit Court, D. Oregon.

August 9, 1892

Paul R Deady and John M. Bower, for plaintiff.

William T. Muir, for defendants.

DEADY District Judge.

This action is brought by the plaintiff, a subject of Great Britain, against the members, personally, of the common council of the city of Portland, to recover the sum of $7,500, as damages, for an injury to his right ankle, caused by stepping on a defective plank in a sidewalk on the south side of Washington street, in front of lot 8, block 177.

The action was tried by the court without the intervention of a jury. The evidence establishes the following conclusions of fact:

(1) That on November 9, 1891, the plaintiff stepped out of McGinn's bakery, onto the wooden sidewalk, about a foot or eight inches below the sill of the doorway; the plank cracked, and sank down to the ground, a distance of about three and one half inches; his foot turned in nearly at right angles with his leg, stretching the ligaments on the outside of the ankle materially, and probably rupturing the middle division thereof; the skin on the outside of the leg, for a few inches above the ankle, was abraded by coming in contact with the edge of the adjoining plank, which remained in position.

(2) The plaintiff was taken in charge by a competent physician, and treated carefully; he remained in a recumbent position for about six weeks, and is now able, with the help of a cane, to walk fairly well, and the skin wounds are well healed up.

(3) The plaintiff is between 45 and 50 years of age, weighs about 200 pounds, and is a contractor by occupation; the injury to his ankle is serious, and probably permanent, in the sense that owing to the relaxed condition of the ligament, it is liable to displacement from slight causes.

(4) About 20 years before, the plaintiff's leg had been severely bruised about midway of the fibula, and there is some appearance of varicose veins thereabout, but there is no sign of any such veins about the ankle joint, and the injury to his ankle is not affected by any such cause.

(5) The plank that broke with the plaintiff was decayed from below but apparently sound when viewed from the surface, and to ordinary observation; and the defendants had neither actual nor constructive notice of its defective condition.

(6) The plaintiff's general damage by reason of the premises is estimated and fixed at $1,500, to which must be added the sum of $300 for medicines and medical attendance,-- in all the sum of $1,800.

The following is the conclusion of law:

(1) The defendants are not liable to the plaintiff in damages for the injury sustained by him.

The conclusions of fact require no explanation, but a few words as to the conclusion of law will not be amiss.

Section 184 of the charter of the city of Portland (Sess. Laws 1891) provides that the city of Portland is not liable to any one for an injury to the person on account of the condition of any street therein; but this section does not exonerate any officer of the city of Portland, or any other person, from such liability, where such casualty or accident is caused by the willful neglect of a duty enjoined upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.

In O'Harra v. Portland, 3 Or. 525, the supreme court held this section, so far as it exempted the city from liability, to be constitutional.

In Rankin v. Buckman, 9 Or. 253, a case arising in East Portland the court held, under a similar section in the charter of that place, that while the city was thereby exempted from liability, in such cases, the trustees, whom it held to be enjoined by law to keep the streets in repair, were not, in case of their ...