Hendrickson v. City of Astoria

• Decision Date: 09 October 1928
• Citation: 127 Or. 1,270 P. 924
• Parties: HENDRICKSON v. CITY OF ASTORIA.
• Court: Oregon Supreme Court

270 P. 924

127 Or. 1

HENDRICKSON v. CITY OF ASTORIA.

Supreme Court of Oregon, En Banc.

October 9, 1928

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Amanda Hendrickson against the City of Astoria. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages sustained by plaintiff by falling off a raised board sidewalk on Flavel street, in the city of Astoria. The injury is alleged to have resulted through the negligence of the defendant in failing to repair the handrail on the east side of the walk, where the same had fallen down. A verdict was rendered in favor of plaintiff for $750. Defendant appealed from a consequent judgment.

H. K Zimmerman, of Astoria, for appellant.

C. W Robison, of Astoria, and Harold Banta, of McMinnville, for respondent.

BEAN J.

Flavel Street is in Union addition to the city of Astoria. It is platted 19 1/2 feet wide. Along this street is a raised board walk about 5 feet wide, extending from Bond street, where it starts at the ground level, and rises on a gradual incline up to and past plaintiff's house. At the point where plaintiff fell off, the walk is about 8 feet above the ground and is supported by pilings. Plaintiff's house is on the east side of the street. A handrail about 3 feet high runs along both sides of the walk to prevent people from slipping and failling off the same. On the east side, for a space of 29 feet, at the time of accident, the handrail was broken down.

Union addition was laid out and platted in 1885, and duly recorded in January, 1886. The owner of the land platted declared "all streets shown on the plat are to be forever free and are hereby dedicated for public use." The owner duly acknowledged the plat and specification of the addition. The tract of land platted as Union addition is described as "located in the northwest corner of the John McClure donation land claim in section 7, township 8 north, range 9 west, Willamette meridian, and the boundaries are described substantially as follows:

The tract contains two acres in a square; the west boundary commencing at the northwest corner of the said donation land claim, plainly marked with a basalt stone, extends along the west boundary of said claim 297 feet. The north and south boundaries "are at right angles to the west boundary." Two streets running north and south are shown on the plat.

Plaintiff alleges:

"That said sidewalk is a public sidewalk situated on said public street and is used by the general public as a highway and thoroughfare, and that said sidewalk has been and now is constructed, maintained and repaired by the authority of the defendant city of Astoria, and that said sidewalk and said street was the property of and owned by said defendant city of Astoria," and that it was the duty of said defendant to keep said walk in repair.

The defendant in its answer denied that Flavel street was a public street of the city. The defendant city introduced in evidence a plat of Trullinger addition to Astoria, and by measurements taken from this plat it is claimed that Flavel street does not connect with Bond street, as it appears on the ground, but that the place in the walk where the plaintiff fell, and was injured, is about eight feet north of the north end of Flavel Street and outside of Union addition. It is also claimed by the city that while Flavel street was dedicated as a public street, the dedication was never accepted by the city authorities.

The only question submitted upon this appeal is, was the place of plaintiff's alleged injury a public street or walk, under the control of defendant, so as to place upon the defendant the duty of keeping the same in repair, and so as to render defendant liable for damages occurring thereon by reason of lack of repair? All other issues are waived by defendant. Defendant raised this question by a motion, interposed at the appropriate time for a directed verdict in favor of defendant.

The testimony of plaintiff on this point tended to show that she had been familiar with Flavel street and the sidewalk thereon at 154 Flavel street for about 25 years, and during all that time the walk had been maintained with railings on it, and that the street extended to Bond street where it now is with houses on both sides of the street; that plaintiff had resided at 153 Flavel street for about 10 years and used the street from her residence to Bond street for travel; and that the street had been traveled by the residents of that neighborhood and the public generally. It does not appear who constructed the walk.

It is shown by the testimony of Mr. McClanathan, city engineer, who had held that position for about 5 years, that he was engaged in putting "a sewer system through Flavel street." It also appears that after the accident the street commissioner repaired the broken rail.

On March 1, 1926, certain property owners on Flavel street petitioned the city commissioner to improve the street from Bond street to the south terminus of Flavel street, and the same was referred to the city manager and commissioner on streets and public works. These officials on April 1, 1926, reported to the city commissioner, in part as follows, that: "We beg leave to report that the assessments on prior improvements have all been paid to date with the exception of one lot on which there is $71.71 delinquent, and that there should be no objection to an improvement account of delinquent assessments; however, we deem it unadvisable to improve the street until the Bond street improvement is completed so that a proper improvement may be made to join with the Bond street improvement which is now under way"--and recommended that the petition be filed until some future date and that in the meantime the property owners be requested to move the buildings which encroached upon the street.

This report was duly adopted April 5, 1926.

It appears that the city officials were several times notified of the bad condition of the street and walk and requested to repair the same and that they orally promised to do so, but failed.

Laying a sewer "through" the street and making improvements thereon and assessments to pay for the same, making repairs on the walk and maintaining a street light on the street, and entertaining a petition for further improvements from its south terminus to Bond street, as shown by the testimony, indicated that the city authorities had accepted the dedication of the street and exercised dominion and control over the same as a public thoroughfare. The testimony was sufficient to be submitted to the jury on this question, and warranted the jury in finding that the street and walk was a public thoroughfare of the city and that it was the duty of the municipality to keep the walk in a reasonably safe condition for public travel thereon. Much of the testimony was somewhat general, but seems to have passed without challenge as to its correctness.

Under the charter of the city of Astoria, the city has the primary power to build and improve streets and sidewalks within the city limits, and it is its primary duty to repair and maintain such streets and sidewalks in a safe condition for public travel, and it also has the power to determine the character and extent of such improvements, and to determine how the expense of making such improvements shall be paid.

The city was not required to improve the street or sidewalk on Flavel street, or any portion of it. It had the legal right to leave the street in a state of nature, and in such case it would not be liable to one injured thereon, but if the city does make such improvements, and throws them open to public travel, that would be an invitation to the public to use such street and sidewalk, and if it knowingly and negligently permitted such improvements to get into such a condition of repair as rendered them unsafe for public travel, and a traveler thereon without fault on his part is injured by reason of such unsafe condition of the...