Bloomquist v. City of La Grande

• Decision Date: 07 December 1926
• Citation: 251 P. 252,120 Or. 19
• Parties: BLOOMQUIST v. CITY OF LA GRANDE.
• Court: Oregon Supreme Court

251 P. 252

120 Or. 19

BLOOMQUIST v. CITY OF LA GRANDE.

Supreme Court of Oregon

December 7, 1926

In Bank.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Anna Bloomquist, administratrix of the estate of Leroy Bloomquist, deceased, against the City of La Grande. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. T. Cochran, of La Grande (Colon R. Eberhard, of La Grande, on the brief), for appellant.

R. J Green and Eugene Ashwill, both of La Grande (Green & Hess, of La Grande, on the brief), for respondent.

BURNETT J.

This is an action brought by the administratrix of the estate of Leroy Bloomquist, deceased, a child a little less than four years of age at the time of his death. The defendant, as the name indicates, is a municipal corporation working under an initiative charter. The plaintiff avers, in substance, that the city has power to control, improve, and repair the streets within its boundaries, and to abate and remove any nuisance therein. According to the complaint, North Second street is improved its full length and where it crosses Division street there is an irrigation ditch running along the latter street close to the southern boundary thereof crossing Second street by means of a concrete flume which conducts the water under the surface of the street allowing it to rise again on the east side and continue on down Division street. The cross section of this flume is described in the testimony as being 42 inches in width and 21 inches in depth. At its intake, or western end there are two wings of concrete, flaring upstream somewhat like a funnel, so that the water is concentrated into this narrow space, making it run quite swiftly through the conduit. It is said that there was a sidewalk along the west side of Second street which had been allowed to get out of repair where it crossed the water way, so that people habitually traveled on the full width of the street up to the intake of the flume, and that, although defendant had knowledge of the condition there for ample time within which to have repaired it, the walk had been allowed to remain in that condition without any guard rail or screen, or other means, to protect any one from falling into the water at that point. It is charged that on August 1, 1923, the minor decedent, at that time between three and four years of age, while lawfully traveling upon said Second street, came near to the west end of the flume, fell into the water there and was drowned, to the damage of the plaintiff administratrix in the sum of $7,500.

The answer admits the representative character of the plaintiff, the incorporation of the defendant, the death of the decedent, and denies the rest of the complaint, except as stated further in the answer. For a first defense it is charged, in substance, that the parents of the decedent allowed him to run at large in the city, knowing that the ditch was open, carried water, and was dangerous to children of that age; that the defendant and its officers had no knowledge or notice that the decedent did anything of that kind or ever went near the ditch; that Division street was not an improved street, but in its natural condition, and that the parents were negligent in allowing the plaintiff's intestate to go alone without any one to protect him, and to wander away from home; that the flume crossing North Second street was at least three blocks from the decedent's home, and that he was not injured at that place, or by reason of any work or defect in any work done or performed by the defendant, and that he was not injured at any place upon any public street or at any place where any work, building, or construction was done by the city. It is charged that the decedent died leaving no lineal descendants whatever and that his parents are the sole heirs and distributees of his estate.

A second further and separate answer is in these words:

"That plaintiff's intestate, at the time of the injury complained of, had no right or lawful authority to go upon the land or be at the place where said alleged injury occurred, and that said alleged injury occurred, if at all, upon lands not belonging to the said city, or upon streets which the city has not accepted or adopted as a highway or attempted to control, improve, or repair, and plaintiff's intestate would not have been injured if he had not committed said trespass."

A third further and separate answer is here set down:

"That for many years last past the tax levy of the city of La Grande has been inadequate to operate the city of La Grande and improve Division street therein; that the constitutional limitation of a 6 per cent. advance each year does not give the said city sufficient money from the taxes with which to improve said street; that the value of the property adjoining said Division street is not sufficient to permit or allow the city of La Grande to levy assessments therein, by the formation of an improvement district for local improvements, and the assessment of local improvements therefor; that the charter and laws prevent the assessment of said lots for more than the valuation placed upon said lots by the county assessor of Union county, Or.; and that assessments in an improvement district for local assessments equal only to the value of the assessed valuation of said lots would not give sufficient money to improve said street."

All the new matter in the answer was denied. There was a trial by jury, ending in a verdict and judgment for the plaintiff, from which the defendant appealed.

The action is brought under section 380, Oregon Laws, reading thus:

"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $7,500, and the amount recovered, if any, shall be administered as other personal property of the deceased person."

The interest of the administratrix, although the individual occupying that representative position is the decedent's mother, is precisely the same as if she...