Rice v. Wallowa County

• Decision Date: 03 July 1905
• Citation: 46 Or. 574,81 P. 358
• Parties: RICE v. WALLOWA COUNTY.
• Court: Oregon Supreme Court

81 P. 358

46 Or. 574

RICE v. WALLOWA COUNTY.

Supreme Court of Oregon

July 3, 1905

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Action by Settie E. Rice against Wallowa county. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for the recovery of damages for personal injuries received by plaintiff while in the act of crossing a bridge upon the public highway which broke down, precipitating her into the bed of the stream below, thereby, as the complaint sets out, "crushing and bruising the plaintiff and breaking her breastbone and rib, and otherwise producing serious and lasting internal injury to her." The complaint further alleges: "That the said dangerous and defective condition of the said county and public bridge was well known to the defendant county, and was due to the said county's gross carelessness and negligence,and said county had, through its agents and officials having supervision thereof, allowed the stringers of said bridge to become rotten and unsound by reason of having been in said bridge many years, which defective condition was known to the defendant, which had by its agents refloored the said bridge during the year and summer of 1902, and used the said rotten stringers again, willfully neglecting to replace them with sound stringers, and this rotten condition of the said stringers and neglect on the part of the county was the direct cause of the said accident." A trial was had before a jury. At the close of plaintiff's testimony defendant moved for a judgment of nonsuit, which motion being denied, the trial was concluded, resulting in a judgment for plaintiff, from which defendant appeals.

T.H. Crawford and D.W. Sheahan, for appellant.

J.D Slater, for respondent.

WOLVERTON C.J. (after stating the facts).

The question most earnestly insisted upon arises upon arises upon the motion for a nonsuit, and this involves two subsidiary questions: (1) Whether the complaint is sufficient, it being here challenged for the first time; and (2) whether there is evidence sufficient to go to the jury as it respects defendant's knowledge of the alleged defect, or of such state of facts from which defendant might and should have known of such defect if it had exercised reasonable diligence in the premises.

It can scarcely be doubted that the complaint is good after verdict. The rule, as stated in Heilner v. Union County, 7 Or. 83, 33 Am.Rep. 703, is that it must be alleged and proven that the county or its officers had knowledge of the defective or unsafe condition of the bridge, or such a state of facts must be set out from which they might with reasonable diligence have known the condition, and that they neglected and failed to repair within a reasonable time following Mack v. City of Salem, 6 Or. 275. Transposing the language of the complaint for perspicuity, it sets out that the county, through its agents and officers allowed the stringers of the bridge to become rotten and unsafe by reason of their having been in the bridge many years, and that said defective and dangerous condition was well known to the defendant county. This is an explicit statement of knowledge of the defect, if nothing else, and the complaint is therefore amply sufficient.

But it is insisted that the proofs fail to show actual knowledge, and that it was incompetent to show facts from which knowledge might be inferred, because no such state of facts is alleged as to admit of the latter species of proof. Recurring to the complaint again, after setting forth the matter about the stringers, it further states that such condition was known to the defendant, and that defendant, by its agents, refloored the bridge during the summer of 1902, and used said rotten stringers again, neglecting to replace them with sound ones. Now, conceding that these alleged facts are true, there is quite sufficient, after verdict, from which it might be reasonably inferred that defendant had notice or ought to have been apprised of the condition if it had exercised the proper diligence in the ascertainment of the fact. True, the complaint might have been drafted with greater accuracy, but it contains at least a defective statement of a good cause of action, upon the theory that a state of facts is shown by which the defendant might have known of the true condition of the bridge by proper diligence.

The defendant goes further, however, and insists that the evidence is insufficient, even under this theory, to carry the case to the jury. As to this, there is evidence tending to show that three out of four of the stringers in the bridge broke square off at the point of contact with the earth upon which they rested; that they were perfectly rotten where they broke; that they consisted of tamarack poles which had been in use for from 12 to 14 years, and gave way at the smaller end; that a road supervisor in 1900, the accident having occurred in August, 1903, made a repair by putting a plank in on the east end; that he then noticed that the stringers, or at least one, was rotten, and settled down into the earth that where it rested on the earth it was considerably decayed, and that he did not have the means of fixing the bridge as it should have been; that a new decking was put on in 1902, and that it was then discovered by one of the workmen that one of the stringers was rotten, but that this...