Gigoux v. Yamhill County

Mr. Justice Moore delivered the opinion of the court. 1. This action is predicated on Section 6375, L. O. L., which reads: “Whenever any individual, while lawfully traveling upon any highway of this state or bridge upon such highway, the same being a legal county road, shall, without contributory negligence on his part, and without knowledge upon his part of the defect or danger, sustain any loss, damage, or injury in consequence of the defective and dangerous character of such highway or bridge, either to his person or property, he shall be entitled to recover of the county in which such loss, damage, or injury occurred, compensatory damages, not to exceed the sum of $2,000 in any case by an action in the Circuit Court of such county, or in a Justice’s Court therein, if the amount of damages sued for shall not exceed the sum of $250.00.” It is contended that Emma Gigoux went upon the bridge where the aperture was in plain view, and that without observing where she was going she turned her head backward to speak to her mother, and in doing so stepped into the hole in the planking and was injured, and since the testimony conclusively showed that the plaintiff’s intestate was guilty of contributory negligence, her conduct precludes a recovery herein, and, such being the case, an error was committed in refusing to grant a judgment of nonsuit. It appears from the testimony that Emma was crossing the bridge in advance of her mother, who remarked — 217 — that since services were to be held in the church on the next day new stockings would have to be procured for this daughter, whereupon Emma, turning her head to reply, stepped into the aperture in the plank covering and was hurt. In parts of its charge, to which no exceptions were taken, the court so completely submitted to the jury the question as to the contributory negligence of Emma Gigoux upon this subject, that quotations from the instructions will be made, to wit: “Now, the four elements which the plaintiff is bound to establish by a preponderance of the evidence are these: (1) This deceased child must have been lawfully traveling upon the highway. (2) She must have received the injury by reason of a defect in this highway. (3) Her own negligence must not have contributed to such injury. (4) She must have been ignorant of the defect at the time of the injury. * * It is the law that a person traveling upon a public highway has a right to presume * * the highway is in a reasonably safe condition. * * And that presumption prevails in this case, that the child had a right to presume that the bridge was in a reasonably safe condition at the time she was injured. * * As to whether she was negligent or not, you have heard testimony as to her turning sideways. You have heard testimony as to the size and condition of the defect — that hole. As to whether that constituted negligence on her part, which contributed to her injury, is for you to determine, and in that connection the law is that a person traveling upon a highway, or a bridge, or a sidewalk, or-any other place where pedestrians travel, does not have to exercise every care and precaution excepting only as an ordinarily prudent person will necessarily have to; and if a person is absorbed in thought having a right to presume that it is reasonably safe, he is not bound to be directing his sole and whole attention to the discovery of defects. This is not required of any person. In this connection you will consider the age — 218 — of this deceased child and also her mental capacity. You have heard the testimony, which testimony, tended to show she was of average mentality to say the least. And you have a right to take into consideration whether a person of her age and mental capacity acted as an ordinarily prudent person of that age and mental capacity would have acted at the time and place and under the circumstances, and determine whether or not she acted as an ordinarily prudent person and used that degree of care that an ordinarily prudent person of her age and mental capacity would have used at the time. And if you find by a greater weight of the testimony she did so act, why thén she would not be negligent. ’ ’ 2. The legal principles thus announced are supported by the authorities. Thus the f-our elements referred to, which the plaintiff was required to establish, are conditions precedent to a recovery in an action of this kind: Section 6375, L. O. L.; Bailey v. Benton County, 61 Or. 390 (111 Pac. 376, 122 Pac. 755). The statute makes it unlawful for any person to cross a public bridge with a portable engine without placing plank beneath the wheels of the machine to protect the structure : Section 6337, L. O. L.; Jones v. Union County, 63 Or. 566 (127 Pac. 781). See the notes to this case in 42 L. R. A. (N. S.) 1035. Fast driving over any bridge or overloading it by driving too many head of cattle, horses or mules thereon are also unlawful acts: Section 6375, L. O. L. The bridge where the injury occurred in the case at bar being a part of the highway, the plaintiff’s intestate was lawfully traveling thereon when she was hurt. 3. In speaking of a deduction which the law expressly directs to be made from particular facts with respect to the rights of a traveler on a public road, an author observes: — 219 — “He walks, as it has been said, somewhat too strongly ‘by a faith justified by law,’ and has a right, in the absence of anything to the contrary, to presume that the highway is reasonably safe for travel”: 2 Elliott, Roads & Streets (3 ed.), § 817. In a note to the text, the correct rule is stated as follows: “The presumption does not warrant the omission •of such care as ordinary prudence requires, and the (statement quoted is correct only in a limited sense.” An infant is required to exercise that degree of care, in order to avoid personal injury, that the testimony shows the child reasonably capable of exercising, depending upon his age, knowledge and mental capacity: Dubiver v. City Ry. Co., 44 Or. 227 (74 Pac. 915, 75 Pac. 693,1 Ann. Cas. 889); Mundhenke v. Oregon City Mfg. Co., 47 Or. 127 (81 Pac. 977, 1 L. R. A. (N. S.) 278); Westman v. Wind River Lumber Co., 50 Or. 137 (91 Pac. 478); Russell v. Oregon R. & N. Co., 54 Or. 128 (102 Pac. 619); Thornton v. Portland Ry., L. & P. Co., 63 Or. 478 (128 Pac. 850) ? 4, 5. What the court said about a person being absorbed in thought might, if standing alone, seem to carry the rule too far, for a person must give some attention to the place over which he passes in order to observe patent defects if any exist therein. When, however, the language referred to is read in connection with the presumption which was held applicable, it is believed that no harm resulted. It is incumbent upon the officers of a county, who are charged with a performance of that duty, to see that the highways which are open for travel are reasonably safe for that purpose. Invoking the disputable presumption that official duty has been regularly performed, a traveler on a public road when — 220 — addressed by another person can properly give attention to what is said and may turn his head toward the speaker for that purpose. Such heed, however, is not being “absorbed in thought,” which phrase usually signifies an occasional aberration of intellect, which, momentarily, precludes all attention. No exception was taken to the expression “absorbed in thought,” nor could the jury have been misled by its use, for Mrs. Grigoux’s remark that Emma should have a new pair of stockings evidently pleased the little girl, and her attention must have been aroused with pleasurable expectation. 6. The testimony as to the age, experience and mental capacity of the deceased shows that the question of her alleged contributory negligence was properly submitted to the jury, and, this being so, no error was committed in denying the motion for a judgment of nonsuit. 7. It is maintained that an error was committed in not permitting the defendant to offer testimony in support of the alleged unsanitary condition of the plaintiff’s home at the time of the accident and during the last illness of the deceased. It is argued that paragraph á of the answer, hereinbefore set forth, avers a new and intervening cause, and that in refusing to receive evidence in relation thereto the defendant was prejudiced. It is believed that the pleader, in the part of the defense referred to, intended to charge contributory negligence on the part of the parents of Emma Gigoux in failing to call a physician when she was hurt, in permitting the girl’s clothing to irritate the wounds, and in not exercising greater care in respect to the alleged unsanitary conditions of the home, whereby the little girl’s death resulted, and not particularly to aver an independent intervening cause of her death. As tend — 221 — ing to uphold the view we entertain respecting the part, of the answer to which attention has been called, the defendant’s counsel undertook to show that the little girl’s wounds may have been infected by germs when being bathed, by inquiring of Mrs. Gigoux on cross-examination: “Did you ever boil the basin, or disinfect it in any way before you put water into it ? ” An objection to the question having been interposed, the counsel conducting the examination said: “We are trying this case upon the theory that the negligence of the parents would be an element. ’ ’ Other questions and remarks upon this subject of similar import induce the conclusion that the averment referred to was intended to set forth contributory negligence on the part of the parents, and hence no error was committed as alleged, and that the jury were not misled by excluding such testimony. In support of this conclusion the court charged as follows: “And also you must find, before you can find for the plaintiff, by greater weight of the testimony, that this injury which she received, when she fell through this hole in the bridge, was the primary cause of her death. ’ ’ 8. It is insisted that an error was committed in refusing to receive evidence of the alleged negligence of the parents of Emma Gigoux as to their care and treatment of the little girl after she was injured. In Bradshaw v. Frazier, 113 Iowa, 579 (85 N. W. 752, 86 Am. St. Rep. 394, 55 L. R. A. 258), where the death of the plaintiff’s intestate resulted from exposure occasioned by the execution of a writ of removal sued out by the defendant, it was held that the fact that the intestate’s parents were guilty of negligence in caring for the intestate after the exposure constituted no defense to an action for — 222 — abuse of process. In Ploof v. Burlington Traction Co., 70 Vt. 509 (41 Atl. 1017, 43 L. R. A. 108), in an action in wbicb an administrator was seeking to recover damages for tbe defendant’s negligence resulting in tbe death of a minor child, for tbe benefit of tbe child’s estate, it was ruled that tbe negligence of tbe parents contributing to tbe accident could not be imputed to tbe child. To tbe same effect, see Macdonald v. O’Reilly, 45 Or. 589 (78 Pac. 753). No error was committed in this respect. Other exceptions are relied upon, but, believing them unimportant, tbe judgment should be affirmed, and it is so ordered. Affirmed. Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Ramsey concur.