Dodson v. City of Bend , 117 Or. 231 ( 1926 )

In Banc.

This is an appeal from the judgment in favor of the plaintiff against the defendant City for damages

Costs, 15 C.J., p. 272, n. 63 New. Municipal Corporations, 28 Cyc., p. 1387, n. 4, p. 1465, n. 34, 36, p. 1467, n. 45. Pleading, 31 Cyc., p. 79, n. 4, p. 82, n. 11, p. 352, n. 52, p. 367, n. 1, p. 368, n. 9, p. 391, n. 23, 24. Trial, 38 Cyc., p. 1360, n. 51, p. 1369, n. 33, p. 1565, n. 78. sustained by the plaintiff resulting from a defective sidewalk. The defendant appeals and defines the issues on appeal as follows:

"The complaint filed in this case and upon which the Plaintiff proceeded to trial did not state a cause of action against the Defendant for the reason that no allegation was made therein to the effect that the Defendant or any of its officers had notice of the involved defect in the sidewalk, prior to the alleged injury nor did it allege any facts from which such notice could be implied or inferred. After the Plaintiff had closed her case in chief, her counsel, over the objection of Defendant's counsel, reopened her case and put in testimony tending to show that the involved defect in the sidewalk had existed for some days prior to the involved injury, there being no allegation in the complaint to support such testimony nor did plaintiff move to amend her complaint so that it would set up a cause of action until after the Defendant had made its motion for a directed verdict in its favor."

Defendant assigns four errors: 1. That the plaintiff had no legal right at the close of her case in chief to introduce evidence not admissible under the allegations of her complaint.

"That the Plaintiff was not entitled to amend her complaint to conform to the proof, when objection was made to the introduction of the proof upon which the proposed amendment was based."

"That the Court had no right, after all the testimony was in, to allow an amendment to Plaintiff's complaint which not merely changed Plaintiff's cause of action but converted a complaint that did not state a cause of action into one which did, against Defendant's objection and exception."

That the court should have granted defendant's motion for a directed verdict for the reason that the complaint as originally filed did not state sufficient facts.

The complaint is alleged to be defective only in this that it did not allege that defendant knew of the defect or alleged facts which would show that it ought to have known. The portions of the complaint directly involved are as follows:

"* * plaintiff was seriously injured by stepping in a hole in said sidewalk carelessly and negligently left there by defendant, its officers or agents, * *.

"That the said hole in said sidewalk was carelessly and negligently left there by defendant, its officers or agents, and through said carelessness and negligence this plaintiff has been greatly injured * *.

"That at the time of said injury there was no light or any manner of protection to the public or this plaintiff against injury in the said defective sidewalk as hereinbefore set out, or in any manner was protection afforded or guarded against by defendant, its officers or agents in the protection of pedestrians generally, and the hole in said sidewalk was in such a place concealed by darkness at the time of said injury, and said injury occurred entirely through the carelessness and negligence of the defendant herein. * *"

No claim is made by the defendant that the complaint after being amended during the trial is insufficient. AFFIRMED. Dillon (5 ed.) on Municipal Corporations, Sections 3011-3013, states the law of a municipality's liability for a defective highway thus:

"Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as for those caused by defects occasioned by the wrongful acts of others, but, as the basis of the action is negligence, notice to the corporation of the defect which caused the injury, or of facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability." Mack v. The City of Salem, 6 Or. 275, 278;Heilner Co. v. Union County, 7 Or. 83, 85 (33 Am. Rep. 703); Rice v. Wallowa County, 46 Or. 574, 576 (81 P. 358).

But notice to the City is not necessary where the defect was directly caused by the municipality, or its officers, whose duty it was to keep the sidewalk in repair: 4 Dillon, Municipal Corporations (4 ed.), § 3016, note 2, under § 1718; 6 McQuillin, 5720, § 2808; 13 Ruling Case Law, 319, § 264.

The complaint was not tested by demurrer. It will be construed, therefore, favorably for the plaintiff. The complaint will not only be construed liberally but also every reasonable inference drawn from the allegations will be indulged in order to sustain the complaint when it was called in question for the first time upon a motion for a directed verdict in the trial court. A motion for a directed verdict calls in question the evidence and not the pleading: Carty v. McMenamin Ward,90 Or. 490 (216 P. 228); Ridley v. Portland Taxicab Co.,90 Or. 529, 533, 534 (177 P. 429).

It is very doubtful that the complaint is fatally defective after verdict. It is rather in our opinion a defective statement of a good cause of action: Heilner v. Union County,7 Or. 83, 86. The use of the word "left" would indicate that the city through its officers had been at work upon the sidewalk and left it in an unsafe condition. If the complaint had been tested by demurrer, it might properly have been held insufficient. The plaintiff then could have amended her complaint and framed it so as to overcome this defect.

However that may be, an examination of the record discloses that the defendant did not object to the testimony offered for the purpose of showing the circumstances that either brought knowledge to the defendant or ought to have done so. The testimony of a witness was adduced showing that the hole in the sidewalk had existed in the place where plaintiff had received her injury for a month before the accident. It was in the discretion of the court to allow the plaintiff to reopen her case for the purpose of introducing additional testimony. It was likewise within the discretion of the court to permit the plaintiff to amend her complaint: Or. L., § 102; Ridley v.Portland Taxicab Co., above; Bishop v. Baisley, 28 Or. 128 (41 P. 937); Cook v. Croisan, 25 Or. 477 (36 P. 532);York v. Nash, 42 Or. 321, 326 (71 P. 59); Farmers' Bank v. Saling, 33 Or. 394, 404, 405 (54 P. 190); Koshland v.Fire Association, 31 Or. 362, 365 (49 P. 865).

The defendant does not claim to have been surprised and the court granted the defendant every opportunity to combat the evidence adduced and complained of here: Caples v. Morgan,81 Or. 692 (160 P. 1154, L.R.A. 1917B, 760); Ridings v. Marion County, 50 Or. 30, 32 (91 P. 22); Wild v. OregonS.L.R. Co., 21 Or. 168 (27 P. 954).

The amendment was in furtherance of justice and was properly allowed. The right of amendment should be liberally applied: Hillsboro Nat. Bank v. Garbarino, 82 Or. 405 (161 P. 703); Pacific Co. v. Cronan, 82 Or. 388 (161 P. 692); Or. L., § 107. The judgment appealed from is affirmed.

AFFIRMED.

BURNETT, J., concurs in the result.