7 Or. 83 | Or. | 1879
By the Court,
This is an action in which appellant seeks to recover damages for an injury to his goods, wares and merchandise, resulting from the breaking down of a certain bridge in Union county, whereby said goods were precipitated into the river and materially injured. A demurrer having been
It is objected that the complaint is defective and insufficient, for the reason that it is not alleged therein that the county authorities of said county had notice that said bridge was out of repair and in an unsafe and dangerous condition at the time when the accident occurred.
In the case of Mack v. The City of Salem (6 Or. 275), it was held that in order to maintain an action of this character against a municipal corporation on account of its streets being defective and out of repair, it must be alleged and proved that the corporation, or its officers, had notice of such defect and want of repair, or at least a state of facts shown from which notice might be inferred.
This rule, we think, applies with equal force to complaints in actions against counties for iujuries resulting from their roads and bridges being out of repair. The allegations of the complaint bearing upon this part of the case are as follows: “That while the team hauling said goods ivas crossing said river on said bridge, with but one ordinary load of freight thereon, said bridge broke down and precipitated said goods into the waters of Grand blonde river; that the breaking down of said bridge, as herein stated, was caused by the carelessness, negligence and refusal of said defendant to keep said bridge in good repair, and which it was in duty bound to do, as aforesaid.”
These allegations, we think, are insufficient to show negligence on the part of respondent or its officers. To charge the respondent with negligence it should not only have been averred that the bridge was defective and out of repair, and in what particular, but that the county authorities knew of it, or a state of facts averred from which they might have known it with reasonable diligence, and, with sucli means of knowledge within their possession, neglected and failed to repair within a reasonable time.
The breaking down of the bridge in question may have been caused by some latent defect which could not have
But it was claimed, on the argument, that this complaint does not come within the rule laid down in the case of Mack v. The City of Salem, because there no negligence was alleged, while here it is claimed that it was. If a verdict had been taken in this case, the defective pleading might, probably, have been cured thereby; but it stands here upon demurrer with no intendments or presumptions in its favor, and under a familiar rule in pleading must be construed most strongly against the pleader.
To allege that the bridge broke down with but one ordinary load of freight thereon, and that it was caused by the carelessness, negligence, and refusal of said respondent to keep said bridge in repair, is insufficient on demurrer to show negligence; the facts constituting negligence should be averred.
Judgment affirmed.