171 P. 555 | Or. | 1918
delivered the opinion of the court.
“But whether a liability arising from the breach of a statutory duty accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character must depend upon the nature of the duty enjoined, and the benefits to be derived from its performance. ’ ’
Cited in support of the text quoted are the following precedents: Patterson v. Detroit etc. R. Co., 56 Mich. 172 (22 N. W. 260), was an action by a traveler against the railroad company for damages caused by the latter obstructing a highway in violation of the provisions of a statute forbidding railroads to impede traffic at a street crossing longer than five minutes. Another case was Parker v. Barnard, 135 Mass. 116 (46 Am. Rep. 450), where the injury arose through the defendant’s disregard of a statute calling for the protection of a hatchway by railing. In Salisbury v. Herchenroder, 106 Mass. 458 (8 Am. Rep. 354), the damage was occasioned by the falling of a sign which had been suspended by the defendant over a street, contrary to the city ordinance. Owings v. Jones, 9 Md. 108, 117, arose out of the neglect of the defendant to comply with a city ordinance prescribing a mode in which vaults in the public streets should be protected. Devlin v. Gallagher, 6 Daly (N. Y.), 494, was an instance where the grievance arose from disregarding a certain statutory precaution required in blasting operations. In Baltimore City Pass. R. R. Co. v. McDonnell, 43 Md. 534, 552, the railroad company violated the ordinance limiting the speed of cars to six miles an hour and the jury was allowed to consider whether the accident would have been averted if the cars had not been moving faster than the lawful rate. And, lastly, Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 240, 28 L. Ed. 410, 4
“It is not only the duty of all owners of land within the city to keep in repair all sidewalks, constructed or existing- in front of, along, or abutting upon their respective lots or parts thereof, and parcels of land, but such owners are hereby declared to be liable for all damages to whomsoever resulting, arising from their fault or negligence in failing to put any such sidewalk in repair, after the owner or agent thereof has been notified as provided in this charter so to do; and no action shall be maintained against the City of Portland by any person injured through or by means of any defect in any sidewalk”: Section 388.
The limit of the city’s power under that charter would be to visit a liability upon the property owner for not putting the sidewalk itself in repair. It has no reference to making him liable for anything further, and remembering the strictness in which statutes in derogation of the common law are to be construed, it is plain that the excerpt quoted gives no countenance to the implica
The demurrer to the complaint should have been sustained. The judgment of the Circuit Court is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and Remanded.