91 P. 22 | Or. | 1907
Opinion by
This is an action to recover damages for an injury received by plaintiff, while traveling on a county road leading from Woodburn to Monitor in defendant county, in consequence of a defect in a bridge over Pudding River on such road. After alleging that the road upon which he was traveling at the time of his injury was a legal county road, and that the bridge thereon was and had been for a long time prior to the accident out of repair and in a dangerous and defective condition, and known to the county authorities to be so, plaintiff avers that, “while he was lawfully traveling upon said highway and not having been warned of the defects in said legal county road, or in said bridge, or of the dangerous condition of the same, the .horse upon which plaintiff was riding stepped through a hole in said bridge and plaintiff, by reason thereof, was thrown violently to the flooring of said bridge” and severely and permanently injured in his right arm. The answer denies all the material allegations of the complaint. TJpon the issues thus joined, the cause was tried before the court and a jury, resulting in a verdict in favor of plaintiff. From the judgment entered therein defendant appeals, assigning error in the admission of testimony and in the giving of instructions. The several assignments of error will be considered in the order in which they were presented.
J. Plaintiff, as a witness, testified that after dark on the
2. The fact that objection was made to the admission of the testimony did not deprive the court of the power to allow the amendment: Wild v. Oregon Short Line Ry. Co. 21 Or. 159 (27 Pac. 954); Koshland v. Fire Association, 31 Or. 362 (49 Pac. 865); Farmers’ Bank v. Saling, 33 Or. 394 (54 Pac. 190); York v. Nash, 42 Or. 321 (71 Pac. 59). The case of Mendenhall v. Harrisburg Water Co. 27 Or. 38 (39 Pac. 399) when rightfully understood, is not to the contrary. It was so explained in Farmers’ Bank v. Saling, 33 Or. 394 (54 Pac. 190).
3. No evidence was admitted on the trial to show that the highway in question had been regularly laid out and established by the public authorities, but plaintiff was permitted to give, evidence tending to show that it had been used and traveled by the public as a highway for more than 10 years prior to the time of plaintiff’s injury, and that it had been recognized as such by the county authorities. The court instructed the jury that if the road had been traveled, used, improved and worked by the public as a county road for a period of 10 years and more prior to the accident, it was, for the purpose of this action, a legal county road. There was no error in the admission of this testimony, or in so instructing the jury. In this State a highway may be established by adverse user, and, “where the length of time of such use by the public has been greater than the period prescribed by the statute of limitations for the recovery of real property, that will be regarded as sufficient evidence of the existence of a highway independently of any supposed dedication”: Douglas County Road Co. v. Abraham, 5 Or. 318. To the same effect is Bayard v. Standard Oil Co. 38 Or. 438 (63 Pac. 614).
4. Objection was made to the admission of testimony that the road and bridge in question for more than 10 years had been kept in repair by the road supervisor under the direction
5. It appears that the bridge in question, which was about 16 feet wide, had been replanked or “half-soled” for about 10 feet in the center thereof a short time before the accident to plaintiff. The defendant requested the court to instruct the jury that, as plaintiff failed to show that the parties in charge of the buggy which he met on the bridge refused to give him half the road, it must be presumed that they did so, and as a consequence that he was guilty of contributory negligence in guiding his horse off of the replanking and into the hole in the bridge. But plaintiff had a right to assume, in the absence of knowledge to the contrary, that the bridge was safe for travel its full width, and could not be charged with contributory negligence in going off of the half-soled portion thereof, whether he was compelled-to do so or not. Where a county constructs or maintains a bridge for use by the public, a traveler has a right to assume, in absence of information to the contrary, that
6. The defense excepted to the following language in the court’s charge to the jury:
“In this ease you cannot find for over $2,000' in damages, and the compensation you are to give is for whatever bodily injury you say he has suffered, you find that he has suffered, if he has suffered any, or is unable to perform any work as a mail contractor or any work whatever, whatever lessened capacity for work he has, if any. Your verdict should be for such sum as in your judgment would compensate him for the injury and suffering he has sustained, if you find he is entitled to compensation at all. If you find he is entitled to compensation at all for his reduced capacity for work and his disablement, if you find he is disabled, or incapacitated for labor in any degree whatever you find he is incapacitated, you will fix that in the measure of damages.”
The objection is-that the language excepted to is unintelligible and it cannot be determined therefrom whether the court intended to confine the recovery of damages to the physical suffering of the plaintiff, or whether it intended to allow the jury to include damages for his mental suffering. But it is only a part of the instructions on the measure of damages. The remainder of the charge on that subject is as follows:
“There is no exact measure for bodily pain and suffering in these matters. You cannot say so much pain is worth so many dollars; and such another amount of pain is worth.so much more. You cannot estimate it with the accuracy that you could sum up an account. But it is left, to a .very great extent, to the sound discretion of the jury, under the law. There is nothing to be given here on account of sympathy you may feel for this man. Whenever you begin to consider a verdict, on the ground of sympathy, it is your duty to put your* hands in your own pockets and contribute whatever amount you feel sjunpatliy ought, and not' to.take it from the pockets of the citizens of Marion County. But whatever is fair compensation, if you think he 'has shown the right to' recover at all, whatever1 is fair and just compensation inside of $2,000,' you should give him; on one hand not wanting to give him- any less than fair compensation, and. on the.-other hand without any desire to shovel money out on the ground of sympathy,
When taken as a whole, the instruction, we think, clearly stated the law, and the jury could not have been misled thereby. It confined the recovery to compensation for the physical injmy plaintiff sustained.
The judgment is affirmed. Affirmed.