Gigoux v. Yamhill County

• Decision Date: 24 November 1914
• Citation: Gigoux v. Yamhill County, 73 Or. 212, 144 P. 437 (Or. 1914)
• Parties: GIGOUX v. YAMHILL COUNTY.
• Court: Oregon Supreme Court

144 P. 437

73 Or. 212

GIGOUX v. YAMHILL COUNTY.

Supreme Court of Oregon

November 24, 1914

Department 1.

Appeal from Circuit Court, Yamhill County; Webster Holmes, Judge.

Action by Alex Gigoux, as administrator of the estate of Emma Gigoux, against Yamhill County. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by Alex Gigoux, as administrator of the estate of his daughter, Emma Gigoux, deceased, against Yamhill county to recover damages for a personal injury which it is alleged caused her death. The defendant maintained as a part of a public highway a bridge which on September 21, 1912, had a hole in the planking about three feet long and three inches wide at one end and tapered to a point at the other end. On the day named Emma Gigoux, who was ten years and one month old and as intelligent as children of that age, was walking with a sister, ahead of their mother and a young lady, across the bridge, when Mrs. Gigoux spoke to Emma, who looking backstepped into the hole in the bridge, her left lower limb passing through the opening to the knee, causing abrasions of the skin on both sides of the leg. She was taken home, a short distance from the place of the injury, the limb washed with soap and warm water, the wounds bathed with peroxide, a mixture of glycerine and carbolic acid applied to the injured parts, and bandages placed thereon. The little girl was thereafter frequently bathed, clean clothing exchanged for that which had been worn, and the treatment referred to was repeated each morning for about ten days, when, incrustations having formed over the abrasions, it was supposed that the wounds were properly healing. In a few days, however, blood poison set in, whereupon physicians were called; but, they being unable to effect a cure, she died of septicæmia October 5, 1912. The complaint herein alleges the death of Emma, the appointment and qualification of the plaintiff as the administrator of her estate, the maintenance by the defendant on the public road of the bridge, the defect therein, the defendant's notice thereof, and the injury resulting therefrom, setting forth the facts in respect thereto in such a manner as to show the defendant's liability as specified in section 6375, L. O. L. The answer denied most of the material averments of the complaint, and for a separate defense alleged, in effect: That Emma and her parents prior to and at the time of the accident had knowledge of the hole in the bridge. That the aperture48 extended transversely and was so narrow as to render it impossible for Emma to put her foot therein if she had been walking in the usual manner. That at the time she was moving sideways or backwards and negligently stepped into the hole in the bridge. "(4) That in so slipping her foot into said aperture in said bridge the said Emma Gigoux slightly scratched the skin on her ankle or lower portion of her leg, which scratch however, was only slight, and was so regarded by the said Emma Gigoux and her parents, and no physician was called for prescribing for or treating said scratch for a period of ten days or more thereafter, during which time the said Emma Gigoux with no proper treatment of said scratch engaged in her usual play about the premises of her said parents permitting her clothing to rub and irritate said scratch and other articles to come in contact therewith, and the said scratch was permitted to and did become unclean, dirty, and filthy, and by reason of such neglect thereof and of the rubbing of the clothing of said Emma Gigoux upon said scratch and otherwise subsequently bruising, scratching, and hurting the same, and of subsequent injuries received by said Emma Gigoux, and by reason of the dirty and filthy condition in which the said ankle and limb as well as other portions of her body was permitted to remain, and some ten days after the happening of the accident complained of, the limb of said Emma Gigoux became infected and sore, and same thereafter resulted in the ailment which caused the death of the said Emma Gigoux on October 5, 1912." For a second defense it is alleged:

"That said accident complained of by plaintiff is the result of negligence and want of care on the part of Emma Gigoux contributed to on her part as to said accident as well as to any injury sustained or claimed to have been sustained thereby."

The reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, resulting in a judgment for the plaintiff in the sum of $1,000, and the defendant appeals.

R. L. Conner, of McMinnville, and W. O. Sims, of Sheridan, for appellant. James McCain, of McMinnville (McCain, Vinton & Burdett, of McMinnville, on the brief), for respondent.

MOORE J. (after stating the facts as above).

This action is predicated on section 6375, L. O. L., which reads:

"Whenever any individual, while lawfully traveling upon any highway of this state or bridge upon such highway, the same being a legal county road, shall, without contributory negligence on his part, and without knowledge upon his part of the defect or danger, sustain any loss, damage, or injury in consequence of the defective and dangerous character of such highway or bridge, either to his person or property, he shall be entitled to recover of the county in which such loss, damage, or injury occurred, compensatory damages, not to exceed the sum of $2,000.00 in any case by an action in the circuit court of such county, or in a justice's court therein, if the amount of damages sued for shall not exceed the sum of $250.00."

It is contended that Emma Gigoux went upon the bridge where the aperture was in plain view, and that without observing where she was going she turned her head backward to speak to her mother, and in doing so stepped into the hole in the planking and was injured, and since the testimony conclusively showed that the plaintiff's intestate was guilty of contributory negligence her conduct precludes a recovery herein, and, such being the case, an error was committed in refusing to grant a judgment of nonsuit.

It appears from the testimony that Emma was crossing the bridge in advance of her mother, who remarked that since services were to be held in the church on the next day new stockings would have to be procured for this daughter, whereupon Emma, turning her head to reply, stepped into the aperture in the plank covering and was hurt.

In parts of its charge, to which no exceptions were taken, the court so completely submitted to the jury the question as to the contributory negligence of Emma Gigoux upon this subject that quotations from the instructions will be made, to wit:

"Now the four elements which the plaintiff is bound to establish by a preponderance of the evidence are these: (1) This deceased child must have been lawfully traveling upon the highway. (2) She must have received the injury by reason of a defect in this highway. (3) Her own negligence must not have contributed to such injury. (4) She must have been ignorant of the defect at the time of the injury. * * * It

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