Giaconi v. City of Astoria
| Decision Date | 10 October 1911 |
| Citation | 118 P. 180,60 Or. 12 |
| Parties | GIACONI v. CITY OF ASTORIA. |
| Court | Oregon Supreme Court |
On rehearing. Affirmed.
For former opinion, see 113 P. 855.
This is an action at law, brought to recover damages for the injury alleged to have been caused to the plaintiff's real property by the negligence of the defendant in grading a street within the municipal boundaries. The answer pleaded the general issue, and alleged affirmatively that the work was done by the city in a careful manner, through the agency of its contractor, and that what happened was the result of a pure accident, without fault or negligence on the part of the defendant. This new matter was in turn traversed by the reply. By consent of the parties, the cause was tried before the court without a jury. The substance of the findings of fact returned by the court is here given:
The defendant is a municipal corporation having power to improve and repair streets within its boundaries. Irving avenue has been and at all the times mentioned was a duly dedicated street, accepted by the defendant as such, but has never been improved. It runs practically east and west through that portion of the city laid out by John M. Shively, and generally known as "Shively's Astoria." North of Irving avenue, parallel therewith and divided therefrom and from each other by tiers of city blocks, are Grand avenue and Franklin avenue, in the order named. Crossing Irving avenue and running practically north and south, and parallel with each other and divided by tiers of blocks, are Eighteenth and Nineteenth streets, both of which lie on a steep and precipitous hillside, between which, and including a portion of each, was a gulch or canyon, from which water flowed in perennial springs, and in which the earth was soft swampy, and unstable, of all which the defendant city had at all times notice and knowledge.
Plaintiff owned real property lying in the second tier of blocks northerly from that part of Irving avenue included between Eighteenth and Nineteenth streets, and had and maintained thereon, prior to the occurrences described in the pleadings three dwellings. All that part of Irving avenue included in and lying east of Eighteenth street was wholly unimproved and was in a state of nature. Except that portion included in the gulch, already mentioned, the same lay on the steep precipitous hillside, at an elevation of about 180 feet above plaintiff's real property. The part in the gulch was about 50 feet in depth below the ordinary elevation of ground surrounding it, and was fully 35 feet below the established grade of the avenue in question. The gulch was about 250 feet in width, its surface being comparatively level east and west, but sloped to Grand avenue, a distance of about 300 feet, where it met an abrupt descent of about 15 feet to the level of plaintiff's property. By reason of the fact that the soil in the gulch was of such unstable character, and by reason of the steep slope thereof, it was incapable of sustaining any weight, and was wholly insufficient as a foundation for the fill for Irving avenue, and it was wholly unsafe to attempt to fill in that avenue at that place. An examination of the same would have disclosed to any careful and prudent person that those grounds were thus insufficient, and that an attempt to make a fill in the gulch, to bring the same up to the established grade of the street, would cause it to sink and slide, and force and drive the soft soil down upon the blocks in which plaintiff's real property was situated. The defendant, however, did not make any examination of the land whatever, but adopted and passed a resolution declaring its intention to improve Irving avenue by grading the same, to full width of the avenue, to the established grade, and directed the city surveyor to prepare plans and specifications for the construction of the improvement in accordance therewith. Pursuant to said resolution, the city surveyor, without making any examination of the ground whatever, and without any request on the part of the defendant that he should make an examination, prepared and filed such plans and specifications for the proposed improvement, by which it was provided that the gulch between Eighteenth and Nineteenth streets should be filled with earth to the established grade of Irving avenue at said point, and to the full width thereof, requiring a fill in said gulch of 35 feet in height by 50 feet in width and about 250 feet in length, which plans and specifications were adopted by the city. The defendant did not provide for taking care of or confining any of the waters in the soft and swampy ground in the gulch, and made no provision for draining the same, but simply required the fill to be placed on top of the unstable, soft soil already mentioned, without providing any foundation for the fill, or any means to prevent it from sliding down the hillside.
On September 6, 1907, the city duly adopted and passed an ordinance to improve Irving avenue, but the ordinance did not provide any plan for the improvement, or any part thereof, other than it required that portion of the avenue to be improved by grading the same to its full width and to the established grade by filling in earth in the fill to the full width of the street, to bring the same to the established grade, and required the work to be done in accordance with the plans and specifications theretofore made by the city surveyor and mentioned above. The ordinance further provided that the improvement should be let to the lowest bidder, as by the law required, and that the work should be done under the supervision, direction, and control of said defendant, and in accordance with the plans and specifications made by the city surveyor. The city subsequently entered into a contract with one W.A. Goodin to make the improvements, and the terms of the contract required Goodin to make said fill between Eighteenth and Nineteenth streets as aforesaid, but under the control and direction of the defendant. On October 10, 1907, the contractor entered upon and proceeded to make the improvement, and in accordance therewith, and under the direction of the defendant, placed on top of the soft soil in the gulch, for the purpose of permitting the water back and south of the fill to discharge itself through the fill and gulch, a small wooden box or flume, and a small thin sheet iron pipe, and then carelessly and negligently placed on top of the soil, without providing any foundation therefor or either thereof, a large amount of dirt and earth, all of which was done in accordance with the plans and specifications and under the direction of the defendant. Immediately upon this dirt and earth being placed on the soft soil and on top of the box flume and iron pipe, the same, together with the earth and clay, were forced down into the soft soil, and the box flume and iron pipe became wholly destroyed, of all of which the defendant had full notice and knowledge, but nevertheless continued, under the protest and objection of the plaintiff, to place thereon additional dirt, and thereupon the soft soil was forced from beneath the fill, and the ground, together with said fill, moved down upon the property of the plaintiff, doing great damage to him, of all of which the defendant had full knowledge and notice; but nevertheless the defendant thereafter, and after the dirt which had been placed in the fill had been forced down upon the property, still continued to place thereon additional dirt amounting to many thousands of yards, whereby the buildings of plaintiff were forced from their foundations and smashed and broken, and his real property was covered by dirt and other débris, to the great damage and injury of the plaintiff. In order to prevent the total destruction of his buildings, the plaintiff was required to and did remove from said premises a large quantity of earth and other débris, and was compelled to and did incur large expense for the repairs of his buildings. The court found that the conduct of the defendant was negligent, and assessed damages for the plaintiff in the sum of $975. Afterwards, at the request of the defendant, the court made additional findings to the effect that the city surveyor mentioned was, at all times stated in the complaint and long prior thereto had been, a competent and skillful engineer with many years experience in devising plans for improvements for municipal purposes, and that the plaintiff's property, described in his complaint herein, at no place or point abuts on Irving avenue, or is less than 350 feet distant from that avenue. On these findings the court rendered judgment for the plaintiff, from which the defendant appeals.
BURNETT, J. (after stating the facts as above).
"The finding of the court upon the facts shall be deemed a verdict and may be set aside in the same manner and for the same reason, as far as applicable, and a new trial granted." L.O.L. § 159. This being an action at law, the facts as disclosed by the court's findings are thus established beyond our power to gainsay. We cannot rehear the cause upon the issues of fact, or give further attention to the testimony in any event, than to ascertain if there is any evidence tending to support the findings of fact. Astoria Railway Co. v. Kern, 44 Or. 538, 76 P. 14; Flegel v. Koss, 47 Or. 366, 83 P. 847; Seffert v. Northern Pacific R.R. Co., 49 Or. 95, 88 P. 962; Courtney v. Bridal Veil Box Factory, 55 Or. 210, 105 P. 896.
We have carefully examined the testimony, and, in our judgment, there is ample to justify the findings of fact. Indeed, there is little dispute as to what really occurred. The defendant contends on various grounds, in effect, that the judgment was not the proper legal conclusion...
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