Ford v. Umatilla County ( 1887 )

Thayer, J.

The respondent commenced an action in-said Circuit Court against the appellant to recover damages for injury to certain personal property. He alleged in his complaint that on the 13th day of October, 1884, he was traveling through said county, transporting a quantity of household goods, and stock, cattle, and horses, and that while his team of four horses and a wagon, with a load of household goods, merchandise, and library, were being driven over and across the county bridge, over Butter Creek, in said county, at the “ Ewing place,” and the respondent was unaware of the bridge being defective or unsafe, and without fault or negligence on his part, it broke and fell, precipitating the team of horses and wagon, and load of goods, merchandise, and library, into said creek; that two of the horses of the team were killed thereby, and the other two horses, the wagon, household goods, merchandise, and library were badly damaged; that said bridge was at said time a county bridge of said county, and was, and for a long time prior thereto had been, in an unsafe and insecure condition, and without proper protection or notice to citizens or travelers against accident. The respondent claimed general damages in the sum of seven hundred and seventy dollars, and one hundred dollars as special damages, on account of expenses incurred in consequence of the injury. The appellant denied in its answer that the bridge was a county bridge of said county; denied that respondent’s team was lawfully passing over the same at the time of the occurrence, or that the respondent was unaware that the bridge was defective or unsafe, or was without fault or negligence, or that the horses were killed, and other property damaged by reason of the accident alleged in the complaint; denied any knowledge or information sufficient to form a belief as to the unsafe and insecure condition of the bridge at the time of the accident, or that it was without proper protection and notice to citizens and travelers against accident; and denied all the other material allegations of the complaint. The appellant also alleged in its answer that the bridge in question was a private bridge, erected by one H. I). Barton across Butter Creek some rods south of the county road crossing said creek; that said county road crossed the creek at a ford; and that at the time of the accident the creek was nearly dry and easily fordable; that the county road, at and near the ford, was a plain traveled road; that the respondent left it without cause or reason; that before liis team was driven onto the bridge he was warned that it was unsafe; but that he was intoxicated at the time, and recklessly caused and directed the team to be driven upon it; that the defect in the bridge was the internal decay of the stringers, which was a latent defect. The new matter in the answer was controverted in a reply filed on the part of the respondent, and the case, thereupon, was at issue for trial.

The respondent’s counsel filed a motion for a change of the place of trial, upon the grounds that the inhabitants of the county were so prejudiced against the respondent that he could not expect to obtain an impartial trial of the cause. The appellant opposed the motion, and the court overruled it. Subsequently, the appellant’s counsel filed a similar motion, upon the grounds that the judge of the court was so prejudiced- against the appellant that it could not expect an impartial trial, which the respondent opposed, and the court also overruled; thereafter the case came on for trial before a jury. In impaneling the jury, the respondent’s counsel claimed the right to challenge those they saw fit who were tax-payers in the county, on the grounds of implied bias. Accordingly, a number who were called as jurors were challenged upon said grounds, and the court sustained the challenges, to which the appellant’s counsel saved exceptions. After the court had made such ruling the appellant’s counsel interposed a challenge to one T. B. Morgan, who was called as a juror, upon the same grounds. The respondent’s counsel resisted the challenge, and the court overruled it, to which the appellant’s counsel excepted, and then challenged the juror peremptorily. Another juror called (R. Sargeant) was asked by the appellant’s counsel if there was any prejudice or ill-feeling then existing in his mind against the present County Court of Umatilla County; also, if there was any such prejudice or ill-feeling growing out of the transaction in question; which several questions were objected to by the respondent’s counsel, and the objections severally sustained by the court, and exceptions duly taken to the rulings. After the impaneling of the jury was completed, the parties proceeded to introduce their evidence on both sides, a number of objections were made and exceptions taken to the rulings of the court thereon. We have examined the various exceptions so taken and are of the opinion that no error was committed in respect thereto affecting the substantial rights of the appellant. The testimony being closed, the court gave a number of instructions to the jury, to which except tions were taken upon the part of the appellant; also, a number of exceptions were taken by the appellant’s counsel to the refusal upon the part of the court to give certain instructions as asked by said counsel. The instructions asked, and those given that bore upon the merits of the case, are the following: The appellant’s counsel asked the court to instruct the jury that, “before any recovery could be bad in the action they must find that the bridge in question was either a public bridge of Umatilla County in fact, or was knowingly recognized as a county structure by the proper officials of said county at the time of the accident.” This instruction the court gave as asked, except that the court omitted the words “ at the time of the accident,” and also left out the word “ any ” between the words “ before ” and “ recovery.” The court also instructed the jury as follows: “If you find that the bridge in question was of the character described in the foregoing instruction, before any recovery could be had in this action, you must find that the proper authorities of the county had been notified for a reasonable time prior to the accident of the defective condition of the bridge, or that it had been openly and notoriously unsafe to such an extent as to convey notice of its defective condition for a reasonable time prior to the accident. By a reasonable time is meant such time as, by the exercise of diligence, would have allowed of its repair or the prevention of public use. If you find that the breach in the bridge was the result of an internal decay of its supports, not perceptible to the observation, the defendant is not liable for damages resulting from such breach, unless actual notice of the unsound condition of such supports had been given to the proper officers of the county for a reasonable time before the occurrence of the accident.” These instructions were certainly as fair as the appellant had a right to claim. We have always doubted the soundness of the rule which allowed a recovery against a county for such an injury, and have never been able to discover any such relation between a county and its officers as that of master and servant, or principal and agent, nor how the doctrine of respondeat superior could be made applicable; but it was established in this State, and we had to follow it until the legislature saw proper to change it, which it seems to have done at the last session thereof. (Session Law of 1887, p. 45.) The act, however, does not affect the judgment herein. The appellant’s counsel also asked the-court to instruct the jury that before any recovery could be had, the plaintiff must have submitted to them a ease clear of contributory negligence on his part; that the injury must have resulted exclusively from the negligence of the defendant, before it could be called upon to respond in damages therefor. This proposition would seem to imply that the plaintiff was required to establish that he was not guilty of negligence in the affair, which is not the rule. He was obliged to show that the injury was received in consequence of the defendant’s negligence, aud would not then be entitled to recover if his proof showed that he was also guilty of negligence, which contributed to the injury. In other words, he had to prove that the defendant’s negligence occasioned the injury by evidence that did not implicate himself as being guilty of negligence in the affair, contributing to the result. It is immaterial whether a plaintiff in such a case is, as a matter of fact, guilty of negligence or not, unless the evidence upon one side or the other shows it. If it does not appear from the evidence adduced by the plaintiff, then the defendant must establish it. It primarily belongs to the defendant to prove it as a defense, though he may avail himself of the benefit of evidence tending to prove it, appearing from the plaintiff’s own showing. The court had already, in effect, instructed the jury that the respondent was bound to exercise such care as a man of ordinary prudence would use, ordinarily, while driving along a public highway or over a county bridge; that is clearly inferable from the twelfth instruction given to the jury, and this we think is all that could reasonably have been asked. The court had also told the jury that slight negligence on the part of the plaintiff, which did not contribute to the injury, was no objection to his right to recover. This was in accordance with the decision of this court in Bequette v. People’s Transportation Company, 2 Or. 200, and we see no reason to question its correctness. The appellant’s counsel also requested the court to instruct the jury that if they found that the plaintiff was intoxicated at the time and jilace of the accident, the burden of the proof was upon him to show that he exercised due care, and if his intoxication contributed to the accident, he could not recover. The court had already instructed the jury that the fact as to whether plaintiff was drunk or not could only be considered by them in relation to the question as to whether or not he was negligent; that drunkenness was not a defense' by way of contributory negligence, unless it was the approximate cause of the injury complained of; and we suppose the court concluded that it had given upon that subject all the instruction necessary — at any rate, the judge refused to give the instruction asked. We can hardly imagine the ground upon which the instruction asked should have been given. Whether the respondent was drunk or sober, he had the right to suppose that a bridge open to the use of the public, and under control of the county officials, would bear up his load in crossing it. Possibly his judgment as to its strength might have been better while sober than Avhile drunk; but the appellant can claim nothing upon that ground. The county, by leaving the bridge open to public travel, said, in effect, that it was secure, and because the respondent might be inclined to be more credulous when intoxicated than when sober, it was no fact that would excuse the appellant. We are unable to discover where or how the question of negligence could have arisen. The traveling public are not required to be bridge inspectors in order to entitle them to recover for such neglect, and their attempting to cross such a structure, circumstanced as this one seems to have been, under an assumption that it was safe, could not be charged as contributory negligence, whatever .might be their condition as to intoxication or sobriety. There is no pretense that respondent drove his team carelessly or recklessly, or did any act which contributed to the injury except in attempting to cross the bridge, and the appellant, in the manner before suggested, invited him to do that. If the burden of proof is to be shifted in such a case in consequence of the intoxication of the plaintiff, it must be upon the ground that a drunken man is presumed to be careless in what he does; and that, therefore, proof of his being drunk authorizes the inference that he is guilty of negligence. The law will not excuse a person who has committed a wrong because he was intoxicated at the time; but that it will presume him guilty from that fact, cannot in our opinion be maintained. If the respondent was intoxicated at the time of the occurrence, it was a circumstance tending to corroborate proof of carelessness ; but, standing alone, it was not such proof. The appellant had, in order to make out its defense, to prove that the respondent was careless, whether drunk or sober, unless, as before suggested, such proof appeared from his own showing.

The appellant’s counsel further requested the court to instruct the jury that if they found, either that tbe plaintiff was warned of the fact that the bridge was unsafe before the team that was injured was driven upon it, and being so warned, directed and ordered the teams to be driven upon it, or that Sherman Ford, the driver of the team which was injured, knew that the bridge was unsafe before he drove upon it, whether he communicated such knowledge to the plaintiff or not, and at the same time that the bridge might readily have been avoided, they must, in either of such cases, return a verdict for the defendant, which instruction the court refused. Upon what ground the instruction was refused does not appear. The evidence in the bill of exceptions, tending to explain the exception to the refusal of the court to give the instruction, consists, as we understand, of the testimony of Mr. Pennington as to what the said Sherman Ford told him regarding the accident, and circumstances under which it occurred. Sherman Ford was examined concerning the matter as a witness in the case, and denied emphatically that he warned his father, the respondent, as to the bridge being unsafe, or of the latter’s directing or ordering him to drive upon it, or that he knew that the bridge was unsafe at the time he drove the team that was injured upon it. Mr. Pennington, however, testified that said Sherman told him, at the time referred to, an entirely different story, but still, did that establish the fact, or have any other effect'than to impeach Sherman Ford? If the conclusion indicated is correct, and we think it must be, there was no testimony in the case entitling the appellant to ask for said instruction.

The instruction given by the court in regard to the measure of damages, we think was substantially correct. The question on that point merely involved the loss sustained by the respondent as the direct and proximate cause of the appellant’s neglect. The injury was to a kind of personal property that the jury were comjDetent to estimate, almost without proof. The value of the property affected was easily ascertained, and we cannot see but that the assessment of damages was entirely fair and just. Such questions are so much within the province of a jury to determine, that this court will not reverse a judgment in such a case, unless a rule of evidence has been clearly violated, aud an injustice been done the party in consequence. The case having been submitted to the jury, they made answer under direction of the court that the bridge in question was a county bridge in fact; that it was knowingly recognized as such by the proper officials of the county; that it was defective and dangerous, and that the county officials had notice of its condition prior to the happening of the accident; that the plaintiff was not intoxicated at the time and place of the accident, and that Sherman Ford did not have notice of the unsafe condition of the bridge before he drove his team upon it, and thereupon returned a general verdict in favor of the respondent for the sum of seven hundred dollars, upon which the judgment appealed from was entered. Upon the questions raised by the appellant’s counsel while the jury were being impaneled, the court is of the opinion that in an action against a county to recover damages, it is a sufficient ground of challenge for implied bias under the laws of this State, that the juror called to try such action is a tax-payer in such county, and that such challenge may be taken by either party to the action; that the Circuit Court in this case properly sustained the challenge taken by respondent’s counsel upon such ground, and should have sustained the challenge taken by the appellant’s counsel upon that ground; but we are of the opinion that the latter, having afterwards challenged the juror peremptorily, thereby waived his challenge for cause. By adopting that course he avoided the effect of the rulings. The questions put by the appellant’s counsel to the juror B,. Sargeant, as to whether there was any prejudice existing in his mind against the County Court of Umatilla County, and whether there was any such prejudice or ill-feeling growing out of the transaction then before the court, > were proper questions under a practice that has been permitted in trial courts in the State, though we are not aware of its being authorized by statute. Questions of that character are asked in order to ascertain whether or not any grounds of challenge exist. But being a mere question of practice that has been permitted by sufferance of the trial courts, this court will not undertake to enforce it. The appellant’s remedy, where the court refused to allow the said questions to be asked the juror, was to have submitted a challenge to the juror for actual bias, and specified the grounds upon which it was taken. Then, if the respondent’s counsel had excepted to the challenge, and the Circuit Court determined that it was insufficient, the decision thereon could have been reviewed by this court.. Title 2 of chapter 2 of the Civil Code prescribes the mode of procedure in such cases, but as the matter now stands, this court cannot consider it.

It follows from the views herein expressed that the judgment appealed from must be affirmed, and it is so ordered.