Pacific Laundry Co. v. Pacific Bridge Co.

• Decision Date: 20 January 1914
• Citation: 69 Or. 306,138 P. 221
• Parties: PACIFIC LAUNDRY CO. v. PACIFIC BRIDGE CO. ET AL. [d]
• Court: Oregon Supreme Court

138 P. 221

69 Or. 306

PACIFIC LAUNDRY CO. v. PACIFIC BRIDGE CO. ET AL. ^[d]

Supreme Court of Oregon

January 20, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by the Pacific Laundry Company against the Pacific Bridge Company and the City of Portland. From a judgment against the defendant Pacific Bridge Company, it appeals. Affirmed.

This is an action to recover damages for an injury to plaintiff's building and business, which plaintiff claims was the result of the negligent acts of defendants in the construction of a fill upon a street adjacent to plaintiff's building. The conceded facts are: Plaintiff is the owner of certain property upon which a building is located; said building being used for conducting the business of a laundry. The building and property is situated near, but not abutting upon, second street between Sheridan and Arthur streets. In June, 1911, the city of Portland entered into a contract with the Pacific Bridge Company, whereby the latter agreed to improve said street. The street at this place crosses a gulch, and the improvement consisted, among other things, of depositing earth and other material so as to fill the street to the established grade. For the purpose of avoiding the expense of constructing retaining walls, the city obtained from the adjacent property owners, including plaintiff, an agreement or waiver whereby they gave and granted "unto the city of Portland the full right, authority, and privilege to place said sloping embankments upon our said real property." Plaintiff's building is erected upon wooden piers. While the work of improvement was in progress some of the piers supporting plaintiff's building gave way, causing a portion of the building to collapse. The case was tried before a jury, which rendered a verdict in plaintiff's favor against the Pacific Bridge Company, but not against the city. The bridge company has appealed, and assigned as error: (1) That the court denied its motion for nonsuit; (2) that the court allowed the evidence to go to the jury tending to show that the bridge company made a settlement with another party, namely, Patrick Murray; (3) that the court prejudiced the bridge company's case by using certain language in the presence of the jury; (4) that the court refused to instruct the jury that the bridge company was not responsible for any damage naturally resulting from carrying out the plans of the improvement; and (5) that the court instructed the jury that exemplary damages might be awarded if certain facts were found. The record brought up to this court consists only of the pleadings and bill of exceptions.

The material portion of the permission or waiver given by plaintiff and other parties to the city of Portland is as follows: "Whereas, the undersigned are the owners of all of the real property above described, and of all the real property upon which the sloping embankment for said Second street fill will extend or rest: Now, therefore, we, the undersigned, owners of all the real property above described do hereby jointly and severally expressly waive all objections of every kind or nature, jurisdictional or otherwise, that might arise or could be interposed by us, or either of us, by reason of the placing of said sloping embankment upon our real property, or any part thereof, and we hereby give and grant unto the city of Portland the full right, authority, and privilege to place said sloping embankments upon our said real property, and we, and each of us, further undertake and agree to and with the city of Portland that we will not object to the improvement of said Second street in said proceedings, or object to the assessment of any cost or benefit upon our property by reason of the placing of said sloping embankments upon our real property, as aforesaid." In addition to the usual advertisement for bidders, the city inserting the following which was made part of the plans and specifications and part of the contract with the defendant bridge company "Special notice to bidders: Protection of adjacent buildings. The sloping on adjacent property shall be done in a manner so as not to injure or damage any buildings thereon and the contractor shall include in the price bid, per cubic yard, such expense as may be necessary to protect the adjacent buildings from injury or damage."

During the trial, the counsel for defendant having read an extract from an opinion of some other court, the presiding judge remarked: "Oh, yes; that is another one of these cases...