Hamerlynck v. Banfield

• Decision Date: 15 January 1900
• Citation: 36 Or. 436,59 P. 712
• Parties: HAMERLYNCK v. BANFIELD et al.
• Court: Oregon Supreme Court

59 P. 712

36 Or. 436

HAMERLYNCK v. BANFIELD et al.

Supreme Court of Oregon

January 15, 1900

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Leo Hamerlynck against M.C. Banfield and another. Judgment for plaintiff, and defendants appeal. Affirmed.

E.B. Watson, for appellants.

Raleigh Stott, for respondent.

WOLVERTON C.J.

This is an action for damages, arising out of the alleged negligence of the defendants in cutting holes in a bridge on a public street in the city of Portland, and leaving them insecurely covered, by reason whereof the plaintiff was thrown from his wagon in attempting to cross such bridge, and injured. The defense interposed was contributory negligence of plaintiff in attempting to pass over the bridge at a place where the danger was apparent, or in attempting to use the bridge at all, there being another route by which he could have avoided it altogether. A nonsuit was asked when the plaintiff had rested his case, and this necessitates setting out the effect and tendency of much of the testimony introduced up to that period in the trial of the cause. The bridge where the accident occurred is situated upon Twelfth street, extending north and south from Quimby to Overton street. As the plaintiff, with a wagon drawn by one horse and loaded with junk in the back end of the bed, approached it from the north, the defendants were engaged with a number of teams in depositing dirt under it. For the purpose of facilitating the work, they had cut or opened several holes or apertures in the floor on each side thereof, from a foot to two feet from the sidewalk, and others nearer, as well as one or more about the center. These holes were from six to eight feet in length, running lengthwise of the bridge, and about two feet, or less, in width. For the convenience of the teamsters, and at the same time to permit the use of the bridge by the public, the defendants provided two planks of suitable length for the apertures, a foot or more in width and two inches or more in thickness. Two of these were placed over each aperture when not in use, a plank of the bridge floor being left uncut to support them in the middle. The defendants' teamsters, in hauling, drove their horses one on each side of the aperture, so that the wheels of the wagon would pass on the outside upon the solid floor, leaving the bed over the aperture. The planks were then turned up against the wheels, and the bottom of the wagon bed removed, so as to let the load drop through, and, when the team moved away, the planks were replaced. The point where the plaintiff was injured is on the east side of the bridge, near the north end. Two holes had been cut there, abreast of each other, one from twelve inches to two feet from the sidewalk, and the other some two feet from that. The plaintiff drove his horse between the holes or apertures on the solid roadway, intending that the wheels of his wagon should pass over the planks, upon either side, covering the apertures. It is probable that the front wheels passed upon the planks without displacing them, but when the hind wheels struck them they became displaced in such manner that both wheels on one side dropped down, causing one or both upon the other side to drop in also, and the plaintiff was precipitated upon the bridge, whereby he was injured. As the plaintiff was approaching the bridge, he could readily see the teamsters and others at work thereon, and observed a team drive away from one of the holes (where the injury occurred), and he testified that, as he neared the bridge, Rivers, one of defendants' employes, replaced the planks over the hole that he was about to or had stopped his horse to await Rivers' action in replacing them; that Rivers motioned or beckoned him to come forward, and, in response thereto, he passed upon the planks, and was injured. At the time, a wagon was being unloaded further ahead, on the westerly side of the bridge; and the evidence shows that it would have been difficult, if not impracticable, to pass it upon the solid roadway without coming in contact with planks laid over or covering the apertures in the bridge. Indeed, there was some evidence tending to show that, if the bridge had been clear of teams and wagons, it would have been impracticable to drive through upon the solid roadway. Plaintiff testified that he supposed the planks were secure and safe to pass over; that he would not have gone forward if Rivers had not beckoned him, by reason of which he was assured that it was safe to drive on; and that his purpose in going by Twelfth street was to make some purchases thereon, to the south of the bridge. The defendants contend (1) that the evidence thus produced does not tend to establish any act of negligence on their part; and (2) that it establishes the fact that plaintiff was guilty of contributory negligence, and was himself responsible for the accident; and that in either case the nonsuit should have been granted.

It must be premised as an admitted fact that defendants, by positive acts of their own, made the apertures or openings in the bridge upon the public highway, which was then in public use and thereby rendered it unsafe and insecure for general travel. There was no attempt in the meanwhile to close up the roadway against the public, nor to give special warning that...