Webb v. Heintz

• Decision Date: 27 October 1908
• Parties: WEBB v. HEINTZ et al.
• Court: Oregon Supreme Court

97 P. 753

52 Or. 444

WEBB v. HEINTZ et al.

Supreme Court of Oregon

October 27, 1908

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Mary E. Webb against O.E. Heintz, doing business under the firm name and style of Pacific Iron Works, and others. From a judgment of nonsuit in favor of defendant Heintz, plaintiff appeals. Reversed, and new trial ordered.

W.E. Farrell, for appellant.

A.L Veazie, for respondents.

BEAN C.J.

This is an action to recover damages for personal injuries received by plaintiff from tripping and falling over an angle iron frame on a sidewalk in the city of Portland. The facts are that in August, 1905, the Portland Trust Company was engaged in repairing a building on the corner of Third and Oak streets. The work was under the supervision of J.D. Tresham a contractor. Tresham ordered of defendant Heintz, who was doing business under the firm name of the Pacific Iron Works for use in the building, five angle iron furrings, each 16 feet long, about 20 inches wide, and 18 or 20 inches high. Four of these furrings were delivered at the building on August 29th, and the fifth on the next day some time after 5 o'clock, and was left overnight lying on the outer edge of the sidewalk and parallel therewith. On the evening of that day, "between daylight and dark," as plaintiff testifies, she was walking down Third street intending to board a car going north at Oak. As she approached Oak street she moved toward the outer edge of the walk with the intention of crossing the street, and while looking back up Third street, to see if her car was approaching, she did not observe the angle frame, and tripped over it, and was seriously injured. She brought an action against the owner of the building, the contractor, and defendant Heintz, jointly, to recover for the injuries thus received; but the action seems to have been dismissed or discontinued as to all the defendants except Heintz. Upon the issues framed between him and plaintiff the cause went to trial before a jury, and at the close of plaintiff's testimony she was nonsuited, and appeals.

In support of the ruling of the court below it is contended (1) that there was no evidence tending to show that the frame over which plaintiff tripped, was placed on the sidewalk by defendant; and (2) that plaintiff did not exercise ordinary care and caution, and cannot recover on the ground of contributory negligence. There is no direct testimony that the obstruction was placed on the sidewalk by defendant, or by his direction; but that is affirmatively alleged in his answer. He avers that at the request of Tresham he furnished and delivered to him five angle iron frames, including the one described in the complaint, for use in the building; that such delivery was made on the 29th of August, 1905, and the last of such frames was delivered "by this defendant at said building on the 29th day of August, 1905, at about 5 o'clock p.m., *** upon the sidewalk in front of said premises, and by placing and leaving the same upon the outer edge of said sidewalk, lengthwise, along and over the curb, in the position in which the same would be least in the way of pedestrians using said sidewalk." These averments, it is true, are denied by the reply; but that does not make them any the less admissions of the defendant, which ...