| Or. | Oct 13, 1914
delivered the opinion of the court.
Sections 1, 2 and 4 of an act of the legislative assembly filed in .the office of the Secretary of State February 18,1903, are incorporated in L. O. L. as Sections 7007, 7008 and 7009. • Section 3 of the enactment, however, is not thus set out, but reads :
“The provisions of this act shall not be in force or effect until the first day of January, 1904”: Gen. Laws Or. 1903, p. 94.
“Every street-car run, operated, or used on any street-car line in the State of Oregon, other than operated by horses, shall be provided with good and substantial aprons, fenders, or guards which shall be constructed so as to be firmly attached to the front end of each car and extend out in front of the front platform or front end of such car, not less than two feet, and so arranged that the forward end of such apron, fender, or guard shall be not more than three inches above the rails; and such apron, fender, or guard shall be built or constructed so that the motorman, or other person in charge of such car, can drop the front end of such apron, fender, or guard on the track, so as to prevent any person from being thrown down and run over by or caught beneath or under such car: Provided, that whenever, in the judgment of the mayor and the members of the common council of any city or town incorporated under the laws of this state, it shall be deemed for the best interests of the residents and inhabitants of any such city or town to substitute in lieu of the apron, fender, or guard, hereinbefore provided for, another approved design of apron, fender, or guard, said mayor and said city council shall have such right whenever there shall be entered upon the records of said city or town the reasons for making such substitution. ’ ’
Eelying upon the power thus conferred, the council and mayor of the City of Portland adopted a resolution prescribing the fenders required to be used on streetcars that were to be used in that municipality. In an action against the defendant herein to recover damages for the death of a little girl, occurring January 20, 1910, and caused by her being run over by an electric car, it was held, in construing provisions of the city charter, that the authority so delegated by the proviso contained in Section 7007, L. O. L., could not be employed by a resolution, but only by an ordinance:
Evidently anticipating such determination, Ordinance No. 23,259 of the City of Portland was regularly passed, after the injury last referred to had occurred, prescribing the fenders to be used on street-cars operated in that city. This municipal enactment contained an emergency clause whereby the law went into immediate effect May 13, 1911, upon its approval by the mayor. Section 1 thereof was amended November 16, 1911, by Ordinance No. 24,353, which provides generally that it shall be unlawful for any corporation owning or operating street railways within the city after September 1, 1912, to run any street-car using air-brakes without having attached to the front end of the car a fender projecting at least 24 inches, consisting of an apron composed of specified material and a life guard or vertical fender extending at least 3 inches in front of the bumper. Such apron to be attached to pistons working within cylinders, so that, by an emergency application of the air, the apron will be thereby lowered and held on the rails by the air pressure within such cylinders. The apron of the fender to have a projecting bar parallel with and in front of the apron, whereby the bar coming in contact with any pedestrian on the track, air will thereby be simultaneously admitted into the cylinders operating the fender and into a cylinder controlling the brakes. The amended ordinance contained a proviso to the effect that, on or before the points of time hereinafter specified, at least the number of cars mentioned should be thus equipped, to wit: October 1, 1911, 50; March 1, 1912, 100; April 1, 1912, 150; May 1, 1912, 200; June 1, 1912, 250; July 1, 1912, 300; July 15, 1912, 350; and August 1, 1912, 400. A failure so to equip such cars within the re
Section 8 of the ordinance provided that, for any disobedience of its provisions, the corporation found guilty thereof should be punished by a fine of not less than $50 nor more than $500, and each day’s operation of cars without being so equipped should be recognized as a separate offense. Section 2 of the enactment prescribes the fenders required to be used on cars operated in Portland not having air-brakes. Section 8 thereof expresses the judgment of the mayor and common council of that city, as required in the proviso of Section 7007, L. O. L. That clause of the ordinance also contains a further statement as follows:
“Whereas it is impossible to equip all of the streetcars operated within the city limits of the City of Portland with fenders and guards as prescribed in sections 1 and 2 of this ordinance prior to the respective dates prescribed by each of said sections 1 and 2, the use of the type of fender or guard known as the ‘Hunter Drop G-uard Fender’ * * is hereby approved until the dates respectively specified in said sections 1 and 2 of this ordinance, from and after which said dates it shall be unlawful to use upon said street-cars * * any other type of fenders or guards than the types prescribed in said sections 1 and 2 respectively.”
The testimony shows that the car causing the injury was of type “F. No. 340,” and was operated on the streets of Portland by using air-brakes, but it did not have the fender or apron prescribed by section 1 of the amended ordinance. The guard used upon such car, however, was the one mentioned in section 2 of the enactment.
Patrick L‘. Betech, the motorman in charge of the car at the time of the accident, testified that, immediately before it occurred, he heard a man screaming, and look
It will be remembered that the proviso found in Section 7007, L. O. L., empowers the mayor and common council of Portland, whenever in their judgment it should be deemed for the best interests of the inhabitants of this city to substitute, in lieu of the fender provided for by that statute, another approved guard, the exercise of which right was to be evidenced by an entry made upon the records of that municipality. It will also be kept in mind that the statute did not go into effect until January 1, 1904. Ordinance No. 24,353, prescribing the kind of fender to be employed in streetcars having air-brakes and used in the City of Portland, was not to become operative until September 1, 1912, 47 days after the plaintiff’s daughter was killed. Prom the time the statute referred to went into force until this ordinance became effective- was 8 years and 8 months. How many street-cars having air-brakes were in use by the defendant when the ordinance became operative does not appear from a transcript of the testimony. On July 15,1912, or the day preceding the injury complained of herein, 350 cars should have been equipped with fenders, as prescribed in section 1 of the ordinance. That number of cars should have been supplied with guards in 8 years, 6 months and 14
*570 “Under the provisions of this statute, the right of a Circuit Court to set aside a judgment and grant a new trial can be exercised only when, in the trial of a cause an error has been committed which is so prejudicial to the defeated party that the judgment rendered against him would, if allowed to remain in force, be reversed on appeal. When the trial court, within the time allowed, discovers that such a mistake of law has been made, it may sua sponte or on motion correct the error by setting aside the judgment and granting a new trial, thereby avoiding the necessity of and the expense * * incurred by an appeal.-’ ’
The case at bar comes within the rule thus announced, and, as there was no evidence received in respect to the matter stated by the court in its findings, the judgment was properly set aside.
The order brought up for review is affirmed.
Affirmed.