Hise v. City of North Bend

• Decision Date: 08 December 1931
• Citation: 138 Or. 150,6 P.2d 30
• Parties: HISE v. CITY OF NORTH BEND et al.
• Court: Oregon Supreme Court

6 P.2d 30

138 Or. 150

HISE v. CITY OF NORTH BEND et al.

Supreme Court of Oregon

December 8, 1931

In Banc.

Appeal from Circuit Court, Coos County; J. T. Brand, Judge.

Action by Roy Hise against the City of North Bend and others. From a judgment for plaintiff, the City of North Bend appeals.

Affirmed.

The complaint alleges that prior to November 3, 1926, the plaintiff had never been in the defendant municipality, was entirely unfamiliar with its streets and with the fact that Virginia street, one of its thoroughfares, so connected with the municipal wharf that, in the darkness of night, an automobilist, especially a stranger, could readily drive from the one on to the other without notice that he was upon the wharf with the deep waters of the bay a few feet ahead. The complaint further alleges that the defendant municipality and its councilmen, who are also defendants, erected no barricade to prevent an automobilist from proceeding over the edge of the wharf into the water, and that they wholly failed to install any warning lights or other devices to apprise the automobilist of the danger ahead. Continuing, it alleges that November 3, 1926, at an hour when the night was unusually dark, due to rainfall and fog, the plaintiff entered the city driving his automobile; that he mistook Virginia street for another thoroughfare along whose course he had intended to drive; that he proceeded down Virginia street on to and across the wharf unaware of his mistake until he was precipitated from the edge of the dock into the deep water below. After alleging injury to the plaintiff's person to his automobile, and to some articles of personal property in the car, the complaint demands judgment for $5,906.30. The answers deny all charges of negligence, and, in addition, the city's plea sets forth the following affirmative defenses: (1) Negligence upon the part of the plaintiff; (2) the plaintiff was a trespasser or a bare licensee upon the wharf, and his injury was not due to any willful or wanton conduct of the city; (3) the charter exempted the city from all liability for injuries sustained through "the defective condition of any sidewalk, street, avenue boulevard, alley, court or place"; (4) the municipality's charter authorized it to construct and maintain this wharf; and (5) before the wharf was built the city council exercised due care in the selection of a competent engineer whose plans and designs were later adopted by the council and were faithfully adhered to in the erection of the structure. The reply put in issue the foregoing new matter. From a judgment based upon a verdict in favor of the plaintiff and against the city only, the latter has appealed and presents fourteen assignments of error.

L. A. Liljeqvist, of Marshfield (J. G. Mullen, of North Bend, on the brief), for appellant.

Mark Weatherford, of Albany (Weatherford & Wyatt, of Albany, and J. Arthur Berg, of Coquille, on the brief), for respondent.

ROSSMAN, J. (after stating the facts as above).

We shall first consider the assignments of error based upon the rulings of the circuit court which denied the city's motion for a directed verdict and which entered judgment in favor of the plaintiff upon the verdict. A brief summary of the evidence favorable to the verdict is deemed advisable.

Prior to November 3, 1926, the plaintiff, who was an intelligent young man, 26 years of age, had never been in the city of North Bend, and was entirely unfamiliar with its streets and wharf. Upon that day he left Eugene in his automobile with the intention of going to Giddon's Camp at Lakeside across the bay from North Bend. He arrived in the latter city about 6 o'clock p. m., and stopped for a few minutes at a restaurant where he ate dinner. At that place he was informed that the ferry which he would be required to board in order to cross the bay on his way to Lakeside had ceased operations for the day, and then concluded that he would return to Marshfield, about three miles distant. In going from Marshfield to North Bend, he drove along Waterfront road which is paved with bitulithic pavement, and which parallels a railroad track, but nowhere crosses it. Waterfront road becomes Stanton avenue as it enters North Bend, and the latter thoroughfare terminates when it reaches Washington avenue, whose course is at right angles to Stanton avenue. At this point a fence, painted with light-colored paint, warns the automobilist of the termination of Stanton avenue, and a sign directs him to turn to the left if he desires to proceed to the business section of North Bend. The plaintiff turned to the left and drove two blocks up Washington avenue to Sherman avenue, which is the principal street of the city, and then turned to his right down Sherman avenue until he had gone one block and had crossed Virginia street. Here he found the aforementioned restaurant and stopped. After having eaten his meal, and having decided to return to Marshfield for the night, he drove along Sherman avenue a block or two more, and then reversed his direction with the intention of retracing his course back to Marshfield. The evidence shows that the night was dark, and that the air was charged with fog to such an extent that travelers had very little vision. The plaintiff testified that he could see only twenty feet ahead, and that, when he came to Virginia street, he turned to his left, having mistaken it for Washington avenue. He added that his lights were burning, that he was driving at a speed of not more than five or eight miles per hour, and that he was looking alertly for the fence he had seen at the place where Stanton avenue ended. Seven hundred seventy-four and one-half feet directly down Washington avenue, which was paved and improved for vehicular traffic, was the approach to the municipal wharf. At the edge of the wharf, which was 72 feet wide, there was no barricade, gate, or sill to prevent a car from running off of it into the waters of the bay, 30 feet deep at that point. There were no warning lights, signs, or other indications of danger to apprise an automobilist of what lay ahead. The distance from the intersection of Sherman and Washington avenues to Stanton and Washington avenues was 480 feet. The character and width of the hard-surfaced pavement along Virginia street was practically the same as that along Washington avenue for a distance of 460 feet. The 460-foot stretch of bitulithic pavement along Washington avenue, just mentioned, was followed by a section of plank roadway 171 1/2 feet in length and somewhat wider than the preceding bitulithic pavement. It is crossed by two railroad tracks, and is continued by another section of plank roadway 143 1/2 feet long and 24 feet wide, at the conclusion of which is another section of plank roadway 153 1/2 feet long and 24 feet wide, which was constructed by the city upon land conveyed to it in fee simple. It constitutes the approach to the municipal wharf, and is regarded as a portion of that landing place. It is conceded that the city possessed sufficient power to enable it to maintain the wharf. As the plaintiff left the 135 1/2-foot section of plank road just described, he came directly upon the main structure of the wharf, which is 389 feet long and 72 feet wide. The longer dimension is at right angles to the approach, and parallels the water's edge. The approach met the wharf at approximately its middle point. To the left, and about 30 feet from the point where the approach enters the wharf, was a warehouse structure; ahead, the way was clear; to the right was open space, free from all structures and other objects. Thus, when the plaintiff left the approach and came upon the wharf, he had only 72 feet more to go until he was at the dock's edge with the deep water below. As previously stated, there was no barricade or other obstruction to impede his progress, and no sign, light, or any other device to signal danger. He proceeded, still believing that he was upon the course which would return him to Marshfield, and, after having gone the additional 72 feet, was hurled into the waters of the bay. The injury which he sustained is the basis of this action.

The two assignments of error now under consideration are based upon the contentions: (1) That a charter provision of the city exempted it from this liability; and (2) that before erecting the wharf the city exercised due care in selecting an engineer to plan the installation; that, after he had submitted his designs, the city council approved them, and later built the structure in precise conformity to the plans.

The charter provision above mentioned is as follows: "No recourse shall be had against the City for damage or loss to person or property suffered or sustained by reason of the defective condition of any sidewalk, street, avenue boulevard, alley, court or place, or by reason of the defective condition of any sewer, or by reason of any defective drainage, whether any of said defects originally existed, or whether they were occasioned by construction, excavation or embankment; nor shall there be any recourse against the City for want of repair of any sidewalk, street, avenue, boulevard, alley, court or place, or by want of repair of any sewer; nor shall there be any recourse against the City for damage to person or property suffered or sustained by the reason of accident on sidewalk, street, avenue, boulevard, alley, court or place, or by falling from an embankment thereon or into any excavation therein but in such case, the person or persons on whom the law might have imposed the obligation to repair such defect in the sidewalk, street, or public highway, or in the sewer, and also the officer or officers through whose official negligence such defect remains unrepaired shall be jointly...