City of Astoria v. Astoria & C.R.R. Co.

• Decision Date: 25 November 1913
• Citation: 67 Or. 538,136 P. 645
• Parties: CITY OF ASTORIA v. ASTORIA & C.R.R. CO.
• Court: Oregon Supreme Court

136 P. 645

67 Or. 538

CITY OF ASTORIA v. ASTORIA & C.R.R. CO.

Supreme Court of Oregon

November 25, 1913

Department 2.

Appeal from Circuit Court, Clatsop County; J.A. Eakin, Judge.

Action by the City of Astoria against the Astoria & Columbia River Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Omar C. Spencer and Oscar Furuset, both of Portland (Carey & Kerr, of Portland, on the brief), for appellant.

G.C Fulton, of Astoria (A.W. Norblad, of Astoria, on the brief) for respondent.

McNARY J.

This action was instituted by plaintiff to recover over from defendant the amount of a judgment for a personal injury recovered by Annie Anderson against the plaintiff. In June 1908, Miss Anderson commenced an action in the United States Circuit Court for Oregon, against plaintiff, to recover a judgment for damages in the sum of $20,000, which she alleged she sustained while walking along one of the streets within the confines of Astoria. The gravamen of her complaint is that during the month of and prior to September, 1907, Eleventh street was an improved public thoroughfare running north and south through the city; that the portion of the street where the accident occurred was improved by the construction of an elevated roadway about 15 feet above the Columbia river; that during the year 1906 the municipality granted a right of way to defendant, to construct, operate, and maintain a line of railway over and across Eleventh street; that, seasonably following such grant, defendant constructed its line of railway across the street; that in the construction thereof the railroad company placed its rails above the elevated street about 18 inches; that the grant to the company embraced a way 50 feet in width; that in constructing its line the railroad company built an approach or apron on either side of its track, starting at the level of the street and gradually rising until the approach came in line with the top of the rails of the railroad track; that, while this approach extended across the entire width of the street on the south side, it only covered a portion of the street on the north side, leaving on either side a perpendicular descent of about 18 inches; that no barrier was placed on the sides of the approach to protect the unwary from falling therefrom; that at nightfall on September 2, 1907, while moving along the street, and exercising due care, she fell from the apron or approach at a point about one foot north of the north rail of the railroad track, sustaining serious injuries. Promptly after the institution of the suit and service of process upon the plaintiff, the defendant was apprised thereof, and notified that it was primarily liable for the casualty to Miss Anderson. Receiving no word from defendant, the city appeared by answer and presented these issues: (1) It denied the accident in toto; (2) it denied that the place where the injury occurred was a street, but averred, on the contrary, that the locus was the private property of the railroad company, and for that account the city owed Miss Anderson no duty to keep the place in repair; and, lastly, that if she received any injury it was through her own carelessness and negligence.

After the issues had been formed by the pleadings and in the latter part of October, 1908, the city caused the following notice and resolution to be served upon the railroad company:

"The City of Astoria, Clatsop County, Oregon. Astoria, Oregon, Oct. 28, 1908. To the Astoria & Columbia River Railroad Company--Gentlemen: Acting under instructions from the common council of the city of Astoria as per resolution herewith, I respectfully inform you that an action has been instituted against the city of Astoria by one Miss Annie Anderson, to recover the sum of $20,000 as the damages alleged to have been caused by a fall on the right of way of the A. & C.R.R. Co., said action is now pending in the United States Circuit Court for the District of Oregon, and of this take due notice. I am, Very respectfully yours, [Signed] O. Anderson, Auditor and Police Judge."

Resolution introduced by Councilman W.C. Logan: "Be it resolved by the common council of the city of Astoria: That the auditor and police judge of the city of Astoria be and he is hereby instructed to inform the Astoria & Columbia River Railroad Company in writing, that there has been instituted against the city of Astoria by one Miss Annie Anderson, an action in the United States Circuit Court for the District of Oregon, to recover the sum of $20,000 as damages alleged to have been caused by a fall on the right of way of the Astoria & Columbia River Railroad, and that as it was the duty of the said Astoria & Columbia River Railroad Company to keep said right of way in repair, the said Astoria & Columbia River Railroad Company will be expected to take notice of said action and properly defend the same."

"State of Oregon, ss.: County of Clatsop--I, Olof Anderson, auditor and police judge of the city of Astoria, hereby certify that the foregoing is a true and correct transcript of a resolution adopted by the common council by unanimous vote of said body at its meeting held on the 19th day of October, 1908, said resolution being on file in my office, to which I have hereunto set my hand and the seal of the City of Astoria, Oregon, this, the 29th day of October, A.D. 1908. [Signed] O. Anderson, Auditor and Police Judge."

The case was tried June 23, 1909, and eleven days prior thereto the city again notified the railroad company of the pendency of the action and the day appointed for the trial. No heed was given by the company to any of the notifications. Miss Anderson recovered judgment for $5,000.

On November 28, 1911, plaintiff filed a complaint against the defendant which alleged, inter alia, that in December, 1895 plaintiff passed an ordinance granting to defendant a right of way upon and across certain streets in the city of Astoria, which franchise contained, among other provisions and restrictions, the following: "*** That said railroad, inclusive of switches and side tracks, shall not be constructed above or below the established grade of the street or streets where the same are traversed or crossed by said railroad switches and side tracks; that whenever any street or portion of street is used or occupied by said railroad, switches and side tracks shall be ordered improved by said city, the said railroad company shall improve, at its own expense, the said portion of said street and thereafter maintain same in repair and in the manner provided for the improvement of such street, so much thereof as shall be included between the rails of said railroad and within an area of three feet wide on each side of said rails on the outside of the track except at the crossings of cross streets, those running north and south to the ship's channel, at which place said railroad company shall improve said cross streets within the boundary lines of this franchise whenever the said cross streets shall be improved by the said city to the boundary lines of the franchise hereby granted. ***" Continuing, the complaint asserts: "That at the time said line of railway was constructed and at the time of the adoption of said Ordinance No. 2,026 and for over ten years prior thereto the said Eleventh street was and has been and ever since has been and still is a public street in said city from its north terminus to its south terminus fully accepted by the said city and improved and used and employed by the public as such, and said city of Astoria has at all times maintained full and complete jurisdiction thereover as such street; and it was the duty of the said defendant under said ordinance No. 2,026 and under the laws of the state of Oregon, to construct and maintain the said Eleventh street within the said right of way of the said defendant's line of railway and the crossing of its line of railway thereover in a reasonably safe condition for travel, but the said defendant in the construction of its said crossing and its said line of railway over said Eleventh street wholly failed to and did not exercise any care or caution whatever and did not make said street within its right of way or at its crossing reasonably or at all safe from travel, and so carelessly and negligently conducted itself in that regard that it carelessly and negligently built and constructed its roadbed over 18 inches above the street grade of said Eleventh street and over 18 inches above the decking and grade of said street and for the purpose of providing a means for passage by the users of such street, travelers, and vehicles, said defendant carelessly and negligently constructed an apron or approach leading from the grade of said street and the planking and decking thereof from each side of its line of right of way crossing said street up to the top of the said...