nnsrivrw v. `COUNTYVOF cmcxauns. *35 .
tice ofthe particular defect ·in‘thisbridge—the holeirt‘the*roadway-— `
which was the immediate`cause`of‘r·the accident. The evidence tends to
show, and would justify a finding to that effect, that one of the county
commissioners., who lived in the vicinity, had his attention called to it
a short time before the occurrence, and that the supervisor who lived in
the neighborhood must have known it`, though he restned a short time
before, and another had notthenlbeen appointed. Notice to the super-
visor is notice to the county, and what he may know in the diligent dis-
charge of the duties of his ofltice he has notice of and the county also;
, Mack v.-City of Salem, 6 Or. 275; Heélncr v. VUwlcmC0.,·7 Or. 83. jThe
supervisor is the agent of the county, appointed by it to attend to the
highways in his district, with ample means at his command to make all
needed repairs. I think every person who held the ofhce 'of supervisor
in this district, from the erection of the bridge to the commencement of
this action, must be deemed tohave had notice that this hridgewas in
a defective and dangerous condition. It never was properly constructed
or tinished. I know it will not do to exact of sparse neighborhoods in a
new country the strength, durability, and finish in the constructiornof
bridges that obtainin old and densely populated ones. But the legislature
has spoken on the subject. Section 4 of the'act`of,, December 19, 1865,
(Laws Or. 723, § 40, note,) provides that, t when-» it appears to the
county court from the representations of the supervisor, that a bridge
of ten feet or more span isneeded on any highway, it shall be built in
a good, substantial manner, "and covered with sound plank at least two
inches thick, and not less than twelve feet long, and wel! spiked dawn,?
and the county shall pay the supervisor the cost of such plank and spikes.
This section is placed in a note to the compilation, because it`°appeared
to the compiler that it might have been repealed by an inadvertence.
And, if it had been, its value as an expression of opinion, as to what is
a reasonable roadway for such a bridge as this, would not be impaired.
But the supreme court in Milling Cq,,v. La.rw.O'o., 5 Or. 269, has since
said that the act is in force. `
The roadway on this bridge was never spiked, or otherwise fastened,
than by laying loose logs irregularly along the end of the planks onone
V side of the bridge. The planks, being loose, naturally worked to the
lower side of the bridge, and hence the hole in the roadway that was the
immediate cause of this accident. So far, this was a defective structure
of which the supervisors of the district had or might have had notice,
with which the county is chargeable. Indeed, a bridge of this-lengtb
and height ought to have had a railing on either side, The cost, of :·
railing is nothing compared to the additional safety it gives toabridge.
And I think it is common knowledge that there are but few if any bridges
in this country, of even half the length and height of this one, that arr
without railing. l s
It is also contended, in mitigation of damages, that the plaintiffs
negligence, subsequent to the injury, is the cause of the delayed union
of the bone. The burden of proof in this matter is on the defendant.
The opinion of experts and authors (Ham. Surg. 250; 1 Gross, Surg.
/