100 P. 937 | Or. | 1909
Opinion by
This is an action against a municipal corporation and its councilmen to recover damages for a personal injury,
The cause being at issue was tried, and a verdict for $850 was returned against the city, but the councilmen were exonerated from liability. From a judgment rendered on the verdict the city appeals. The plaintiff also appeals from that part of the judgment which releases the co-defendants from accountability.
These appeals will be treated together, as they involve a construction of section 128 of the municipal charter, which is as follows:
“Oregon City is not liable to any one for any loss or injury to person or property growing out of any casualty or accident happening to .such person or property on account of the condition of any street or public ground therein; but this action does not exonerate any officer of Oregon City or any other person from such liability, when such casualty or accident is caused by the willful neglect of any duty enjoined upon such officer or person by law, or by the gross negligence or willful misconduct of such officer or person in any other respect.” Sp. Laws Or. 1895, p. 518.
It is contended by plaintiff’s counsel that in referring to the language quoted the court erroneously made the following observation in the hearing of the jury, to-wit:
“I don’t believe that this clause in the charter of Oregon City exempting the city from damages for negligence and allowing a recovery only against the councilmen for gross or willful negligence is constitutional. I don’t think the legislature can take away plaintiff’s common-law remedy, against the city for ordinary negligence, and substitute for that a partial remedy against the councilmen for gross or willful negligence. It attempts to take away a complete remedy and substitute therefor a partial and emasculated remedy. This is unconstitutional and wrong.”
An exception having been taken to this remark, it is argued that, though the utterance was a correct interpre
“No * * law impairing the obligation of contract shall ever be passed.” Section 21, Article I, Constitution of Oregon. “
It was held, however, that the doctrine so maintained was inapplicable. No reference seems to have been made to that part of the charter of Portland which rendered its officers liable only for gross negligence or willful mis
Believing that no errors were committed as alleged, the judgment is affirmed as to both appeals.
Affirmed.