Facts
On October 21, 1977, a semi-trailer truck of the company Wisar, Wyser + Anliker drove through the North Gate in Wangen an der Aare. The trailer rammed the second gate arch, slightly damaging the arch and severely damaging the semi-trailer truck. The driver Zimmermann was initially convicted of not having control of the vehicle, but was acquitted by the High Court of the Canton of Bern.
The vehicle holder Wisar, Wyser + Anliker sued the State of Bern as the owner of the road and the gate arch for compensation of the vehicle damage of CHF 9,350.--. The defendant opposed the claim and filed a counterclaim for reimbursement of the repair costs of the gate arch of CHF 2,032.15.
The Court of Appeal of the Canton of Bern upheld the main claim in full and granted the counterclaim in the amount of CHF 1,016.--.
Considerations
The appeal value of the counterclaim of CHF 2,032.15 does not reach the minimum amount of CHF 8,000.--, which is why the appeal is only admissible if the main claim and the counterclaim are mutually exclusive. This is the case here, as the main claim is based on the strict liability of the owner of the structure under Art. 58 CO and the counterclaim is based on the strict liability of the vehicle holder under Art. 58/59 RTA.
The lower court saw the lack of signaling of the gate passage as a defect in the structure, for which the defendant as the owner is liable under Art. 58 CO. The Federal Supreme Court confirms the adequate causal link between this defect and the vehicle damage.
In the collision of the…