Eastman v. County of Clackamas

• Decision Date: 05 September 1887
• Citation: 32 F. 24
• Parties: EASTMAN v. CLACKAMAS CO.
• Court: U.S. District Court — District of Oregon

32 F. 24

EASTMAN v. CLACKAMAS CO.

United States Circuit Court, D. Oregon.

September 5, 1887

(Syllabus by the Court.)

By the law of Oregon, a county has charge and supervision of all the public roads therein, and, by means of road-districts supervisors, and local taxation, is provided with the means to open and keep them in repair, and is therefore on principle liable at common law for any injury to person or property resulting from its act or omission in the construction or maintenance of a bridge on such highway.

Section 10 of article 1 of the constitution of the state declares that 'every man shall have remedy by due course of law for injury done him in person, property, or reputation. ' At and long prior to the formation and adoption of the constitution the statute of Oregon gave any person an action against a county for an injury to his rights arising from some act or omission thereof, which statute was continued in force by section 7 of article 18 thereof. Held, that such remedy for such injury, or its equivalent, was secured to the party by the constitution, and therefore it is not in the power of the legislature to deprive him of it.

A statute of Oregon passed in 1854 gave an action against a county for an injury arising from its act or omission, which was continued in force after the adoption of the constitution by section 7 of article 18 thereof, and on the adoption of the Code of Civil Procedure, in 1862, the provision was carried into section 347 thereof; but on February 21, 1887 the legislature amended said section so as to omit such provision, without making any express provision as to any existing right of action thereunder. Held that, in the absence of any express provision to that effect, the act of 1887 ought not to be construed so as to affect or take away any such rights, and did not affect this action then pending in this court for damages for such an injury.

A supervisor of roads is the agent of the county within his district, and notice to him of a defect in a highway therein is notice to the county; and what he may know of such defect in the diligent discharge of the duties of his office he has notice of, and the county also.

Frank v. Drake, for plaintiff.

T. A McBride and William H. Effinger, for defendant.

DEADY J.

This action is brought by the plaintiff, who is a citizen of California, against the defendant, a public corporation of this state, to recover damages for an injury sustained by the plaintiff in his person and property, in the sum of $7,390, on June 20, 1886, in crossing a bridge on road 100 in district 58, in Clackamas county, by reason of its defective and insecure structure and condition. The answer of the defendant consists of specific denials of every material allegation in the complaint except the citizenship of the defendant, and a hypothetical allegation to the effect that if the plaintiff did fall from said bridge it was the result of his own negligence. The plaintiff replied, denying negligence on his part. The cause was tried by the court without the aid of a jury; and on the trial a stipulation was filed to the effect that the plaintiff in his reply had alleged in due form that the defendant was estopped to deny that the road in question is and was, at the date of the injury complained of, a county road and public highway, and that the defendant had in like manner pleaded in its answer the act of February 21, 1887, entitled, 'An act to amend section 347 of the Code of Civil Procedure,' subject to any legal objection thereto.

I find the material facts of the case to be as follows:

From the records and files of the county court of Clackamas county it appears that in January, 1876, a petition, duly signed, was presented to said court for the location and establishment of a county road, commencing at the intersection of the Oregon City and Portland road, and the old immigrant road leading to Philip Foster's, near the center of section 13, in township 2 S., of range 4 E.; running thence, in a southeasterly direction, about 13 miles, to Salmon river, near the residence of Edwin Bates, on the N.E. 1/4 of section 26, in township 2 S., of range 6 E., with proof by the affidavit of one of the petitioners that due notice had been given of said petition; that thereafter, during the same year, said road was duly located, surveyed, and established as county road 100, and entered on the county map of roads and road-districts, in said county, and has since been opened and regularly worked by the supervisors of road-district 58, appointed by said court; that in 1880 and 1881 a wooden bridge was built by certain of said supervisors on the line of said road, with the road tax of said district, across Beaver creek, the same being about 80 feet long, having three stringers 5 feet apart, 12 feet wide, and from 12 to 15 feet above the stream and ravine through which it flows, curving to the left from the eastern end, without railing, and covered in the center with loose plank 2 inches thick and 12 inches wide, and at each end with puncheons, on the north or lower ends of which loose logs were laid lengthwise the bridge; that, from the opening of this road to the commencement of this action, the supervisors of road-district 58 made regular returns of the tax by them collected and expended on this road, including this bridge, with the charges for their services, to the county court of Clackamas county, which were regularly audited and settled.

On June 20, 1886, while the plaintiff was traveling from Eastern Oregon to Portland, by the way of the Barlow road, across the Cascade mountains, in a buggy drawn by two horses, with John Morgan as a companion, he came down the stream to the eastern end of this bridge, and, following the road, turned shortly onto it, on a descending grade. At the time bushes and small trees had grown up on either side of the bridge, and particularly on the upper or left side, so that the foliage obscured the surroundings, and prevented, in connection with the curve in the bridge, an uninterrupted view of the roadway thereof. The bridge was somewhat lower on the upper than the lower side, and about 30 feet from the eastern end a plank had slipped to the left as far as the middle stringer or been broken off there, leaving a hole in the right-hand side of the roadway about 4 feet long and 12 inches wide. When the team came to this opening the off horse shied or crowded to the left, thereby pushing the near one to the edge of bridge in the dense ingrowing and overhanging foliage, when the animal, unconscious of the danger, stepped off the bridge, falling with his head and shoulders between two logs, from which situation he was soon rescued by Morgan. The buggy was badly cracked, bent, and strained, the harness was much broken, and the horses considerably scratched and bruised. The plaintiff was painfully bruised on the left side, and suffered a fracture of the ulna or lower bone of the left arm, between the middle and lower third.

With the assistance of a person living in the vicinity, the horses and buggy were gotten out of the creek, and put together, and the plaintiff and his companion drove on a few miles to a place called Sandy, where they spent the night, and the next day they drove to Portland, a distance of about 25 miles. Here the plaintiff put his team in a livery stable for care for two months at a cost of $1 per day, at the end of which the outfit was disposed of for $175, the same having cost at Walla Walla, a few weeks before, $425; that is, $200 for the buggy, $175 for the horses, and $50 for the harness. On the day after his arrival in Portland the plaintiff, his arm being badly swollen, and, as he thought, broken, visited a physician, who told him he could not tell then whether his arm was broken or not, and advised him to put it in a sling, and bathe it with a certain liniment, which he did for ten days or two weeks; when he went to another physician, who told him his arm was broken, and also a rib, and set the former, and put it in splints; and afterwards introduced him to a third physician, who said so much time had elapsed he could not tell what to do for him; when he went to a fourth one, who says he treated his arm for a month or two, during which time he reduced the fracture, and put it into splints, where the plaintiff says it remained until last spring. The defendant having in its answer and otherwise denied that the plaintiff's arm was broken, on the trial the arm was submitted to the examination of several physicians, two of whom were called by the defendant, and they all agreed there had been a fracture of the ulna, followed by delayed union; that the ends of the bone were now held together by a cartilaginous formation, which in all probability will ossify in time, and produce a good arm.

The plaintiff at the time of the accident was engaged in taking orders for portraits in crayon and pastel, which he makes, and had received $800 worth of the same, that he was unable to finish on account of his injuries, without the aid of solar prints and hired help, the cost of which consumed his profits; and he paid surgeons for attendance during the illness consequent on such injuries $125.

On the oral argument of the case, one of the counsel for the defendant made and insisted on the point that this is not a lawful county road, and therefore the county is under no obligation to keep the bridge in repair. The statute (Laws Or. p. 721, Secs. 1-3) provides 'that all county roads shall be under the supervision of the county court,' and no such road shall be established except by its authority. 'All applications for * * * locating county roads shall be by petition to the county court, * * * signed by at least twelve householders of the county...