Clary v. Polk County

• Jurisdiction: Oregon
• Parties: Dell L. CLARY, Respondent, v. POLK COUNTY, Appellant. Marie L. CLARY, Respondent, v. POLK COUNTY, Appellant.
• Citation: 231 Or. 148,372 P.2d 524
• Court: Oregon Supreme Court
• Decision Date: 13 June 1962

Page 524

372 P.2d 524

231 Or. 148

Dell L. CLARY, Respondent, v.POLK COUNTY, Appellant.

Marie L. CLARY, Respondent, v.POLK COUNTY, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 12, 1962.

Decided June 13, 1962.

Charles M. Lovett, Portland, argued the cause for appellants.On the briefs were Veatch, Bauman & Lovett, Portland.

James W. Lock, Gresham, argued the cause for respondents.On the brief were McAllister, Burns, Gustafson & Lock, Gresham.

Before WARNER, P. J., and SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

This is an appeal from a judgment against the County of Polk for damages for injuries suffered by plaintiffs, Dell L. and Marie L. Clary, husband and wife, when their car failed to negotiate a curve on Polk County RoadNo. 681.Each plaintiff filed a separate action to recover $2,000 for damages which each sustained.By stipulation the cases were tried together and the jury returned verdicts in favor of both plaintiffs.The court thereafter denied defendant's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.From the resulting judgments, the county appeals.

The actions were brought under ORS 368.935, which provides:

'Whenever any individual, while lawfully traveling upon any highway of this state which is a legal county road or bridge upon such highway, without contributory negligence and without knowledge of the defect or danger, sustains any loss, damage or injury in consequence of the defective and dangerous character of the highway or bridge, either to his person or property, he is entitled to recover of the county in which the loss, damage or injury occurred, compensatory damages, not exceeding $2,000 in any case, by an action in the circuit court of the county, or in a justice's court in the county if the amount of damages sued for does not exceed $250.'

Defendant advances two assignments of error which may be restated as the only questions requiring our solution: (1) did the court err in admitting evidence of prior accidents at the same point in the county road where plaintiffs experienced their mishap; and (2) was there sufficient evidence of a dangerous and defective condition of the road in terms of ORS 368.935, supra?

We take the following statement relating to the condition of the road and the manner in which the accident occurred from the county's opening brief.It has the approval of plaintiffs, except as to one particular as hereinafter noted:

'About 11:30 A.M. on December 28, 1958, plaintiffDell Clary was driving the 1956 Dodge station wagon of the plaintiffs in a southerly direction on Polk County HighwayNo. 681, also known as the Agency Road, and approaching a curve approximately one-half mile north of Grand Ronde in Polk County, Oregon.Mrs. Clary was the only other occupant of the car.

'Evidence of the following facts is uncontradicted.The road had been there about 25 years.The surface was oil mat asphalt rock 18 feet in width.On the right hand side of the curve there was a ditch about two feet wide located about three and a half feet from the edge of the pavement.Next to the ditch was a small bank.Six to eight sight posts had been placed by the county around the curve on top of the bank but only two or three were standing at the time of the accident.The land on the south side of the curve sloped down.The curve was a left hand curve changing direction from south to east, the way the plaintiffs were travelling.There was dispute in the testimony as to the slope or superelevation of the highway at the curve.The plaintiffs' evidence tended to show that the curve was flat or sloped the wrong way at the outer edge of the south-bound lane.Defendant's evidence showed that there was about two feet of slope or superelevation in the paved portion of the road throughout the curve.There was also dispute in the testimony as to whether there were any warning signs posted at the approach to the curve.Plaintiffs' evidence showed there were none.Defendant's evidence showed that originally two signs had been erected but on inspection a few days following the accident only one was there; that sign was tilted away from the highway about two feet out of plumb but was visible to approaching traffic.

'PlaintiffDell Cary[sic] testified that he approached the curve at approximately 40 M.P.H.; that it had been raining all morning, was raining at the time of the accident, and there was water on the road.When he saw the curve he just touched his brakes a little to kind of check the speed, because he thought maybe he was going a little too fast, and he didn't have control of the car at all.He turned the wheel, anyway, and it didn't respond at all.About halfway through the curve the car slid off the road into the embankment and rolled over once, coming to rest on its wheels about 20 feet off the road.Both Mr. and Mrs. Clary were injured and their car was damaged.'(Emphasis ours.)

In their brief plaintiffs accepted all of the foregoing statement of the facts except for the portion above italicized by us.It is plaintiffs' position that evidence that the road's surface was oil mat asphalt rock, as stated by the county, was contradicted by evidence of plaintiffDell Clary and a state police officer, both of whom testified that the road at the curve appeared to have a tar-like surface.

We now give our attention to the first assignment.The county urges the trial court erred in admitting evidence of prior accidents at the same location.The assertion is without merit.Under the controlling statute, plaintiffs had the burden of showing that the road was in fact dangerous and defective.Under such circumstances, under ORS 368.935, supra, evidence of accidents at the same place is some evidence that the condition was dangerous and defective, and as evidence of prior accidents was properly admitted for that purpose.Coates v. Marion County, 96 Or. 334, 340, 189 P. 903(1920);Saunders v. A. M. Williams & Co., 155 Or. 1, 7-9, 62 P.2d 260(1936).SeeAnno.70 A.L.R.2d 167 et seq.As done in the Coatescase, supra, the trial judge very properly limited this evidence as showing that the road was dangerous and defective.

The second assignment represents that the court erred in denying the county's motions for nonsuit and directed verdict.These motions rest solely upon the contention that there was insufficient evidence showing that the road was dangerous and devective.

It is clear that in the absence of statute a county is not liable for injuries resulting from the condition of a public road.Templeton v. Linn County, 22 Or. 313, 29 P. 795, 15 L.R.A. 730(1892).ORS 368.935 permits such a recovery and having thus imposed a liability upon counties, it must be strictly construed.Schroeder v. Multnomah County, 45 Or. 92, 97, 76 P. 772(1904).In order to maintain an action for damages resulting from negligent upkeep of a county road, the party sustaining injury must, therefore, bring himself within the express language of the enactment.SeeBailey v. Benton County, 61 Or. 390, 395, 111 P. 376, 122 P. 755(1912).

In their respective complaints plaintiffs allege that at the scene of the accident the road was defective and dangerous in the following particulars: (1) the presence of a sharp, inadequately-banked curve; (2) the absence of an adequate guardrail on the right of the road where it curves; and (3) the existence of a slick, hazardous oil surface.They further allege that the county was negligent in failing to post any signs warning approaching motorists of the existence of the curve.The county maintains that none of these conditions come within the meaning of 'defective and dangerous,' as employed in ORS 368.935.The county argues that the statute refers only to a defect or obstruction in the surface of the road itself, i. e., one which interferes with movement over the highway rendering it perilous, hazardous or unsafe.

The county's contention rests primarily upon Tyler v. Pierce County, 188 Wash. 229, 62 P.2d 32(1936).The items listed by plaintiffs in Tyler as dangerous road conditions were substantially similar to those which plaintiffs assign in the instant matter.The Washington court held that the county was not chargeable with negligence in maintaining a highway by reason of the particulars relied upon.

The Tyler case has no validity or proper application here.To appreciate and understand that conclusion one must remember there are two distinct types of liability statutes authorizing actions for damages against counties and other municipal corporations.One is exemplified by Oregon's ORS 368.935, the other by Washington's RCW 4.08.120.¹

The Washington statute is not limited to county road defects, but imposes liability generally for negligence and all actions brought under it are determined according to common-law rules.Under a long line of Washington decisions the county is only required to exercise ordinary diligence and reasonable care to keep its public ways in a reasonably safe condition.Sutton v. City of Snohomish, 11 Wash. 24, 39 P. 273(1895);Boggess v. King County, 150 Wash. 578, 274 P. 188(1929);Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355(1940);Simmons v. Cowlitz County, 12 Wash.2d 84, 126 P.2d 479(1941).

The Oregon statute is in a sense a special statute limited to one kind of action for damages.It is not coextensive with the common-law liability for negligence.It imposes a liability created by statute arising from 'the defective and dangerous character of the highway,' and does not turn upon the question of whether the county exercised due diligence in the premises, as in Washington, but rests on the existence of a defective and dangerous condition in county roads and bridges and its causal connection with the injury.SeeBailey v. Benton County, supra, 61 Or. at 395, 111 P. 376, 122 P. at 756, where Mr. Justice McBride declares:

'The...