Nosler v. Coos Bay, R. & E.R. & Nav. Co.

• Decision Date: 15 April 1901
• Citation: 64 P. 644,39 Or. 331
• Parties: NOSLER v. COOS BAY, R. & E.R. & NAV. CO. [1]
• Court: Oregon Supreme Court

64 P. 644

39 Or. 331

NOSLER v. COOS BAY, R. & E.R. & NAV. CO. ^[1]

Supreme Court of Oregon

April 15, 1901

Appeal from circuit court, Coos county; Henry L. Benson, Judge.

Action by J.H. Nosler against the Coos Bay, Roseburg & Eastern Railroad & Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for injuries to plaintiff from being thrown over an embankment, alleged to have been made by the defendant company within the limits of a public highway. In 1874 the county court of Coos county attempted to locate a county road, 60 feet wide, from Coquille City to North Fork bridge, which was open to travel, and has ever since been and now is, used as a public highway, and one of the principal thoroughfares of the county. In consequence of some supposed irregularities in its proceedings, the county court in 1886, attempted to relocate the road over the route formerly surveyed. Some time between 1890 and 1893, in the construction of the defendant's railroad, a cut about 30 feet deep was made at a point where the wagon road passes along the side of a hill, immediately below, and only 3 or 4 feet from, the beaten roadway, and within its exterior limits. This cut was made without any agreement with the county court for the use of the highway by the railroad company, and left a space of only 10 or 11 feet between a bank 4 or 5 feet high on the upper side of the road and the edge of the cut, which at the time of the accident was not guarded or protected in any way. Prior to the construction of the railroad, the hillside below the beaten wagon track had a slope of perhaps 25 or 30 degrees, and was covered with brush and timber. On the morning of October 18, 1897, the plaintiff, who resides at Coquille City, hired a team and light spring wagon, and, with his wife and two other ladies drove out five or six miles, to Norway. This was his first trip over the road since the construction of the railway. Some time in the afternoon, after loading into the wagon five or six boxes of apples, they started to return home. As they reached a point opposite to, or a few feet beyond, the excavation made in the construction of defendant's railroad, and while ascending a steep incline, they suddenly and unexpectedly met another team and wagon coming around a bend in the road. As there did not seem to be room to pass the plaintiff stopped his team but, owing to the manner in which his wagon was loaded, the brake failed to work, and the horses, becoming restive and beyond his control, backed the wagon, with its occupants, over the bank and into the excavation, severely injuring the plaintiff, and killing his wife. The complaint alleges that the excavation was made by the defendant company, within the limits of the county road, wrongfully and unlawfully. The answer denies that it was wrongfully made, but admits, by not denying, that it was made by the defendant company. It also sets up the defense of contributory negligence. The trial below resulted in a verdict and judgment for the plaintiff in the sum of $1,000, and defendant appeals, assigning as error (1) the admission in evidence of the proceedings of the county court in the matter of the location and relocation of the county road; (2) in denying the application of the defendant to amend its answer; (3) in overruling its motion for a nonsuit, made at the close of plaintiff's testimony; and (4) in giving and refusing certain instructions.

S.H. Hazard, for appellant.

E.B. Watson, for respondent.

BEAN, C.J. (after stating the facts).

It is urged that the court erred in admitting in evidence the records of the county court in the matter of the location and relocation of the road, for the reason that they show on their face that the court was without jurisdiction over the subject-matter or the parties to be affected by the establishment of the road. We had occasion, in the recent case of Bayard v. Oil Co. (Or.) 63 P. 614, to consider the question of the competency as evidence of irregular and ineffectual proceedings of a county court in the matter of the establishment of a county road in an action brought by a traveler to recover damages for an injury alleged to have been received by him, caused by an encroachment by the defendant on the public highway. It was held, in effect, that such proceedings are evidence of color of title, and that a subsequent user by the public of the road attempted to be located, for the statutory period, if begun and continued with reference to the proceedings of the county court, is proof of a legal highway, the full width designated in such proceedings. It is undisputed that the road, as attempted to be located, was afterwards opened, and prior to...