Rusk v. Montgomery

• Citation: 80 Or. 93,156 P. 435
• Parties: RUSK v. MONTGOMERY ET AL.
• Decision Date: 11 April 1916
• Court: Oregon Supreme Court

156 P. 435

80 Or. 93

RUSK v. MONTGOMERY ET AL.

Supreme Court of Oregon

April 11, 1916

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by Anna Rusk against R. R. Montgomery and the City of Marshfield, a municipal corporation. From a judgment for defendant city, plaintiff appeals. Affirmed.

This is an action by Anna Rusk against R. R. Montgomery and the city of Marshfield to recover damages for a personal injury. At the time the plaintiff was hurt the defendant Montgomery was the owner of a lot 50 feet wide extending easterly through the middle of a block which is bounded on the north by Market avenue, on the east by the wharf line on Coos Bay, on the south by Commercial avenue, and on the west by Front street. The west side of the block is wholly covered with buildings the rear ends of which vary in length and rest upon wharves. The decks of these wharves lie upon timbers supported by rows of piles driven into the earth and extend out to the wharf line. From this line west there have been put up several buildings so as to leave between them and the rear of the structures facing Front street a driveway on the wharves of varying widths. On the east end of the wharf on Montgomery's lot stands one of these buildings, which is used for a fish market. The plaintiff, on January 28, 1914 was passing along the driveway on Montgomery's wharf going to the fish market, and as she reached a corner of that building she stepped upon a plank, the breaking of which precipitated her to the mud flats, the tide being then out. The complaint minutely describes the locus in quo and substantially alleges that the open space on the wharves had been used many years by the public generally as an unrestricted thoroughfare and a means of ingress and egress to and from the public wharves, markets, shops, etc., and as a passageway of necessity, with the knowledge and by the consent of the defendants; that the municipality adopted an ordinance June 20, 1889, defining the water front on Coos Bay, and on January 22, 1906, enacted another ordinance providing for the appointment of a water front committee and prescribing its duties, "and at all times thereafter the defendant city with knowledge of said way and that it was being used by the public generally as a way of necessity connecting Commercial and Market avenues, regularly dedicated public highways within said city, allowed it to remain open as a public and unrestricted thoroughfare and means of ingress and egress to and from the public wharves, stores shops, markets, and other places mentioned in preceding paragraphs of this complaint, and led the public and the plaintiff to believe and held the same out as a public highway of and under the control of the city of Marshfield and exercised control thereof"; that the defendants negligently maintained in the driveway rotten and defective planks which were known to them, or by the exercise of reasonable care on their part might have been so known. The complaint then charges that in consequence of such negligence the plaintiff fell and was injured by reason of the breaking of a plank in the wharf, thereby sustaining damages in the sum of $2,500, for which judgment was demanded.

The defendant Montgomery is not a resident of Oregon, and, not having been served with a summons, did not appear or answer. The city of Marshfield answering denied the material averments of the complaint, and for a further defense alleged in effect that this defendant had no notice or knowledge of the rotten plank or of the hole in the private wharf; that such aperture had existed but a short time and by the exercise of the utmost care this defendant could have had no knowledge thereof; that the defect in the private wharf through which the plaintiff stepped was open and obvious and could have been known to her by the exercise of reasonable care; and that in consequence of her negligence in this respect the injury of which she complains resulted from her own carelessness in failing to observe the defect. The reply denied the allegations of new matter in the answer. The cause was tried and the jury in their general verdict found for the answering defendant. The jury also returned special verdicts as follows:

"First. Had the city of Marshfield, prior to the date of the accident complained of, recognized the place where the accident occurred as a public thoroughfare and assumed and exercised control over the same? Answer: No. Second. Had the city of Marshfield notice of the particular defect from which the accident complained of resulted, or should it in the exercise of reasonable care have known thereof prior to the date of the accident? Answer: No."

From a judgment entered on the general verdict, the plaintiff appeals.

Stoll & Hodge, of Marshfield, for appellant. J. T. Brand, of Marshfield (John D. Goss, of Marshfield, on the brief), for respondent.

MOORE, C.J. (after stating the facts as above).

Exceptions having been taken to parts of the court's general charge it is contended that errors were committed in instructing the jury as follows:

"I further instruct you that a reasonable time to make repairs after the city had, or should have had, knowledge of the defect, must elapse before the city can be held liable for injuries resulting from such defect; that is, the city is, as a matter of law, entitled to a reasonable time in which to repair the defect after such knowledge or notice of the same as I have defined to you, and if you find that such length of time had not elapsed after the city had, or should have had, such knowledge or notice, then your verdict should be for the defendant. There has been something said in the trial of this case as to an ordinance of the city with relation to public wharves and docks. I instruct you that an ordinance of the city of Marshfield has been introduced in evidence, but the effect of that ordinance is for the court to determine, and you are instructed that the city cannot be held responsible in damages for its neglect or failure to enforce said ordinance; that is to say, the mere failure of the city to enforce its ordinances does not give the basis for damages, the question being in this case as to whether or not the wharf was a public wharf, and whether the city had exercised control over it as such. You are further instructed that the passage of this ordinance of itself does not charge the city of Marshfield with responsibility for the condition of the place where the accident occurred. Nor do the provisions of the city charter of the city of Marshfield which give the city certain powers with reference to the water front of said city of themselves render the city liable to keep in repair the place where this accident occurred.

* * * If you find from a preponderance of the evidence that the place of this accident complained of was intended for the use of pedestrians and similar light traffic only and the same was reasonably safe for such use until a short time before the accident complained of, and that the actual defect by reason of which the plaintiff was injured was not known to the defendant and had not existed for such a length of time that the defendant should have known of it in the exercise of reasonable diligence, then the fact, if you find it to be a fact, that the wharf was old and not strong enough for vehicular traffic is immaterial. * * * The court instructs you, gentlemen of the jury, further, on this question as to whether or not the wharf was a public wharf, that it is a question for you to determine from the evidence, and, as I have said, the mere passing or adopting of the ordinance, or mere provisions of the charter of the city of Marshfield which have been referred to, would not of themselves make of this way a public way, the purpose of the ordinance being to have control over the wharves as such. They were not of themselves sufficient to make of this wharf a public wharf or thoroughfare, were not sufficient of themselves to create and make of this wharf a public way. The question for you to determine from all the

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