Chan Sing v. Portland

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. 1. The defendant objected to the introduction of evidence at the trial on the ground that the complaint did not state facts sufficient to constitute a cause of action, which, being overruled, forms the basis of the first assignment of error. The argument is that the complaint is insufficient because it does not allege any specific negligent act done or duty omitted by an authorized agent of the city. "While we do not understand that there is any different rule of pleading in actions of negligence against a municipality and against any other defendant, the objection here goes, in any event, to a mere defective statement of a cause of action, and was waived by answering over, and cured by the verdict: Houghton v. Beck, 9 Or. 325 ; Gschwander v. Cort, 19 Or. 513 (26 Pac. 621); Booth v. Moody, 30 Or. 222 (46 Pac. 884). The case of Caspary v. City of Portland, 19 Or. 496 (20 Am. St. Rep. 842, 24 Pac. 1036), upon which the defendant seems particularly to rely, is not in point, because : First, it was an action in trover to recover the value of certain goods alleged to have been wrongfully and unlawfully converted by the city ; and, second, the objection was taken by demurrer in the court below, and [72] tlie cause came here on appeal from a judgment dismissing the complaint. 2. It is next claimed that the court permitted the plaintiff to prove and recover upon a ground of negligence not alleged. Upon the trial the plaintiff gave evidence, over the defendant’s objection, concerning the construction of the drift dam and the accumulation of logs and debris above it, which, being released, floated down and obstructed the sewer. But he was not permitted to recover on account of the insufficiency of the drift dam, or of the negligence of the city in its construction or maintenance. The court pointed out to the jury the issues to be tried, and confined the recovery to the negligence charged. The evidence in reference to the drift dam was competent upon the question as to whether the city and its officers, after being warned of the danger, had exercised due and ordinary care, under the circumstances, to prevent the intake of the sewer from becoming obstructed. 3. The next assignment of error is based upon the admission of testimony of the witnesses Woodward and Haseltine. Woodward was called as a witness for the plaintiff, and, after testifying that he was familiar with Tanner Creek sewer, and knew of the overflow in question, was asked, “Do you know what was the cause of this overflow of the creek?” to which the defendant’s counsel objected because the evidence was not competent, which objection was overruled, and the witness answered : “The overflow of the creek was caused from the head of the sewer being improperly guarded to take care of it, and debris washed down the creek and stopped up the head of the sewer, and sent this whole Tanner Creek coming down the street. This is a sore matter to me, too.” The witness Haseltine was permitted, over-defendant’s objection and exception, to answer the fol [73] lowing questions: “Q,. Prom what you saw the next day, what, in your opinion, was the cause of the overflow at the head of Tanner Creek sewer? • A. In the first place, there was a very large watershed, which brings down in a heavy storm a very large amount of water, and the entrance was not large enough to take care of all that amount of water unless it was kept clear of all the debris; and there should have been men there to keep that clear, in my opinion. Q. What is that? A. There should have been— There would have been no overflow, in my opinion, if they had been there, and kept the logs and debris away from it. Q,. If the logs and debris had been kept away, in your opinion, the sewer would have been large enough to carry away the water? A. I do.” This evidence was clearly incompetent, because the witnesses were permitted to give their opinion concerning the very matter in issue. The complaint charges that the defendant carelessly and negligently permitted the head of Tanner Creek sewer to become obstructed. The witness Woodward says that, in his opinion, the overflow was on account of the head of the sewer being improperly guarded. Haseltine says •that it was because the city did not keep men enough there to keep it clear. In other words, both testify, in effect, that the city was negligent in not providing men enough to take care of the drift and debris coming down Tanner Creek, so as to prevent it from obstructing and damming up the sewer. This was the real question in issue in the case, and within the exclusive province of the jury to determine. It did not call for expert or opinion evidence, and it was improper to permit a witness to testify as to his opinion upon the question : Burton v. Severance, 22 Or. 91 (29 Pac. 200.) It follows that the judgment of the court below must be reversed, and a new trial ordered. . Reversed.