Warren v. Astoria

Mr. Justice Bean delivered tbe opinion of tbe court. Tbe facts upon which tbe case is based and tbe law governing it are practically tbe same as in tbe case of Giaconi v. Astoria, 60 Or. 12 (113 Pac. 855, 118 Pac. 180). Tbe injury of which complaint is made was caused in tbe same manner and by tbe same acts, but to different property. It is therefore unnecessary to further discuss tbe law of tbe case. After an exhaustive discussion of tbe authorities, tbe rule is plainly announced by Mr. Justice Burnett, on page 34 of 60 Or. (on page 184 of 118 Pac.), of that opinion as follows: “From tbe weight and reason of tbe precedents, the rule may be thus stated: A municipal corporation is not liable for mere consequential injuries resulting from ordinarily careful administration of a reason [605] ably prudent plan of street improvement devised by the municipality in its governmental capacity; but, in the execution itself of any public works, the city acts ministerially, or, in the words of the statute, ‘in its corporate character and within the scope of its authority,’ and for its negligence or maladministration in that relation, resulting in an injury to the rights of another, it is liable in the same way and for the same reason as a natural person or private corporation would be under the same circumstances of executive management.” The defendant complains of a portion of the instructions given by the court to the jury. The court instructed the jury in effect that if, in the construction of the improvement made by the city, the city was negligent, and failed to take reasonable means to prevent injury to plaintiff’s property, and proceeded to make the fill without an examination of the foundation, and without providing reasonably safe foundation for the fill, and the plaintiff’s property was directly injured thereby, the city would be liable; that, when it became apparent that the placing of additional earth on the street would cause the ground to slide, and injure the plaintiff’s property, it was the duty of the defendant to cease work, and if it continued placing additional earth thereon, and damage was caused thereby, under such circumstances it would be liable. After a careful reading of all the instructions, we think the same, taken as a whole, fairly presented the law as decided by this court in the G-iaconi case. Tested by the opinion in that case, there is no error in the record. The judgment of the lower court is affirmed. Affirmed. Mr. Justice Moore dissents.