166 P. 537 | Or. | 1917
Lead Opinion
“It has constantly been determined by this court that, although parties are both plaintiffs or both defendants, yet if an appeal would unfavorably affect*370 the rights of one of them, as determined by the decree appealed from, he is an adverse party as respects his coplaintiff or codefendant, and that the jurisdiction of this court depends upon service of the notice upon all such parties: The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838); Moody v. Miller, 24 Or. 179 (33 Pac. 402); Osborn v. Logus, 28 Or. 302 (37 Pac. 456, 38 Pac. 190, 42 Pac. 997); Stutter v. Baker County, 30 Or. 294 (47 Pac. 705); Conrad v. Pacific Packing Co., 34 Or. 341, 343 (49 Pac. 659, 52 Pac. 1134, 57 Pac. 1021); Cooper Mfg. Co. v. Delahunt, 36 Or. 403, 404 (51 Pac. 649, 60 Pac. 1); Hafer v. Medford etc. R. R. Co., 60 Or. 354, 356 (117 Pac. 1122, 119. Pac. 337).”
We can conceive of no way in which the interests of the City of Portland can be injuriously affected by this appeal. If the judgment of the Circuit Court should be reversed, that would not reinstate the City of Portland as a party defendant. If it should be affirmed, the plaintiff, would still be at liberty to begin another action — in fact, could have begun one at any time after the entry of judgment of nonsuit, and in case of a recovery have issued execution upon either judgment. Neither defendant could have called upon the other for contribution in any event as both were joint tort-feasors, if tort-feasors at all. So that in any view of the case we cannot say that as a matter of law the City of Portland would be injuriously affected by reason of any action we might take with reference to matters involved in the appeal.
“The city council shall have power and authority to regulate, restrain, and prevent obstructions within the public streets, sidewalks, and places, and to make all needful regulations to keep and maintain the pub-*371 lie streets, sidewalks, and places in a clean, open, and safe condition for public use,” etc.: Subdivision 61 of Section 73, Portland Charter.
By subdivision 12 of said section the council is given power and authority “to provide * * for the improving and repairing of streets,” etc. Other sections heretofore quoted in effect vest in the council all powers granted to the City of Portland by the charter. It is earnestly contended that the above provisions are purely legislative and impose no duty upon the council to repair the streets or any ministerial duties whatever. We do not so view the law. The power to control the streets of the City of Portland is one necessarily granted to it by its charter. The instrument by which it exercises that powbr is the city council. In Rankin v. Buckman, 9 Or. 253, this court, speaking through Lord, C. J., had occasion to construe certain sections of the charter of the City of Bast Portland which were practically identical with those here under discussion, and upon a complaint similar in terms to the one in the case at bar. That case disposes of many of the contentions made by defendants here. Mr. Chief Justice Lord, said:
“Having, then, the exclusive care and control of the streets and the means provided to repair them when defective, the duty which the law imposes upon the defendants is imperative to see that the streets are kept in a safe condition for the passage of persons and property, and if this plain duty is neglected and any one is injured, they are liable for the damage sustained.”
This language must be taken with the qualification that neither the city nor its officers are insurers of the safety of the streets and of the persons using them, but it may be said that there rests upon the council an absolute duty to exercise reasonable diligence to
This case was begun upon the theory that both the city and the mayor and commissioners who constitute the council were liable, the city for the failure of its officers and employees to use reasonable diligence to ascertain and remedy defects in the walks, and the commissioners and city engineer for like negligence on their part; but in our view while they might have been properly so joined the facts which would have justified a recovery against the city might not justify a recovery against the councilmen or the city engineer. The city under the doctrine of respondeat superior would be liable for the negligence of any officer authorized by it to see to the repair of the street or perhaps for a failure to designate such officer. The mayor and commissioners, on the other hand, as heretofore observed, are not liable if they have used reasonable diligence to provide funds for such repair and to see that a system of inspection and report of disrepair of walks is provided for and competent persons designated to make such inspections and repairs, unless the defect is so glaring and notorious and long-continued as of itself to create a presumption of knowledge of its existence, which is not the case here. "When the court, as the writer thinks, erroneously held that the city should be granted a nonsuit, it left counsel for the plaintiff in the embarrassing position of being compelled to contend that, to use their own language,
“the city commissioners and engineer, the city commissioners particularly, are the body in whom all this power rests and upon whom all these duties are imposed, and consequently they are liable to the same extent and in the same manner as the city itself would*376 have been liable without the exempting provision in its charter.”
• Assuming the premise to be correct the reasoning of the counsel would seem to be logical. If the exempting provision is broad enough to make the members of the council and the city engineer liable for the neglect of subordinates in any event and irrespective of any diligence or lack thereof in their selection or supervision, then their counsel’s contention is correct and the ruling of the court upon the motion for non-suit was proper. But we apprehend that the negligence for which an officer of the city is responsible is his own personal negligence. In the very nature of things this must be so. An illustration will show the injustice of any other contention: Suppose, for instance, that the engineer had reported this defect to the council and, in the absence of funds, had requested that funds be voted for the purpose of making repairs, and that Albee and Brewster had voted to provide such funds and Bigelow, Dieck, and Daly had voted against the proposition, thereby defeating it, would it be contended for a moment that Albee and Brewster would be liable in damages for this injury which they had vainly attempted to prevent? Or suppose that two of the councilmen having obtained personal knowledge of the defect had failed to report it to their associates, would the negligence of these two be justly imputable to the other members of the body? The conclusion is irresistible that while before the attempted exemption of the city the negligence of its officers, either the council or subordinate officers, was imputable to it, such liability was not transferred to the shoulders of any city officer not actually or constructively negligent. The authorities cited by appellants amply sustain this view. The duty of making a
“A supervision of all construction work in the nature of bridges, streets, and sewers, which work includes an average of a million dollars a year. The supervision of certain sewers and street repair work on funds voted by the council specifically for that work, and during the year 1915 there was upon street repair work three crews mainly employed on repair of macadam streets. I think at the particular time of this accident, or just prior to it, two of those crews were at work in the so-called Northeast district, which included the place of accident. One of those crews had been over this particular district shortly before the accident, and in connection with their duties of repairing the streets, and macadamizing the street, they did repair all cross-walks, gutters, and other parts of the street, which appeared to need attention. There are over 1200 miles of street in the city, and to give personal attention to it would require five and six years of walking to get over it.”
Plaintiff’s counsel moved to strike out such testimony as not being responsive to the question nor within the ruling of the court, and being a conclusion of the witness, which motion was allowed and the testimony stricken out. This was material error. The witness was entitled, in order to relieve himself of the charge of lack of due diligence in ascertaining defects in the street, to show, first, the nature of the task, and, second, the efforts he made to perform it. The law never requires impossibilities, and all it demands of any official is that he shall honestly and faithfully do his best under the particular circumstances. Having-done this he is blameless. The witness testified along the same line as follows:
“To show the efforts which were made to obtain information and keep track of such matters, I would*380 say that all employees in the department were under written orders to report any defects in street surface, or any public property that they saw, or which is reported to them. I have to depend almost wholly upon these reports and on the reports from the police department. I presume reports from the police department are the most important, because that organization covers the entire city every day presumably. There is a record kept in the office of all complaints made by individuals, often complaints come in over the telephone. All complaints filed by the Police Bureau, those complaints are each given an individual number and they are reported at once to the officer or employee who should attend to them. There is every effort possible made to follow them up promptly. And dangerous cases — ”
This was also stricken out. He further stated:
“The orders are that all important cases, all dangerous cases* should receive immediate attention. In the matter of sidewalks, in this particular year, there were posted over twenty-seven miles of sidewalks for reconstruction. ’ ’
For the reason given above this testimony should have been allowed to go to the jury.
The judgment of the Circuit Court is reversed and a new trial awarded. Reversed and Remanded.
Dissenting Opinion
delivered the following dissenting opinion:
I cannot concur in the conclusion reached in this case by the Chief Justice. A contrary rule was established in the case of O’Harra v. City of Portland, 3 Or. 525, where it was held that a section of the charter of the City of Portland exempting that municipality from liability for any personal injury arising from a defec
“That it is within the power of a legislature to exempt a city from liability to persons receiving injuries on account of streets being defective or out of repair, is unquestioned. * * But in such case the injured party is not wholly without remedy. He may proceed personally against the officers to whom the charter delegates the duty of keeping the streets in repair, and from whose negligence the injury resulted.”
The legal principle last announced is subject to the qualification that before municipal officers who are charged with the performance of the duty can be rendered liable for damages resulting from a personal injury caused by a defective street they must have had at their command the means with which to renew the highway: Batdorff v. Oregon City, 53 Or. 402 (100 Pac. 937, 18 Ann. Cas. 287). The defendants, who are officers of the City of Portland in this instance, had at their disposal ample funds with which to make the needed repairs; and as they were elected with notice of these decisions they ought, in justice to be bound by them.
Rehearing
Petition for Rehearing.
(166 Pae. 537.)
On petition for rehearing. Rehearing denied.
Mr. Harold V. Newlin and Messrs. Cleeton & Mc-Menamin, for the petition.
Mr. Walter P. LaRoche, City Attorney, and Mr. Henry A. Da/oie, Deputy City Attorney, contra.
In Banc.
delivered the opinion of the court.
The plaintiff has filed two petitions for a rehearing, one for a rehearing of the motion to dismiss the appeal, and the other for a rehearing “upon the merits.” The original presentation' of the motion to dismiss the appeal was supported by three carefully prepared briefs in which counsel for plaintiff exhaustively argued their contention. While the petition for a rehearing contains no argument not previously advanced by the plaintiff we have nevertheless re-examined the motion to dismiss the appeal with the result that the re-examination carries us along the same path of reasoning which Mr. Chief Justice McBride followed in the original opinion and brings us to the same conclusion which he there expressed: Colby v. Portland, ante, p. 359 (166 Pac. 537).
The petition for a rehearing “upon the merits” does not require an extended discussion and it is sufficient to say that after considering the suggestions of counsel our conclusion is that a rehearing should be denied; and it is so ordered. Rehearing Denied.
