Butler v. City of McMinnville

• Decision Date: 26 June 1928
• Parties: BUTLER v. CITY OF MCMINNVILLE.
• Court: Oregon Supreme Court

268 P. 760

126 Or. 56

BUTLER v. CITY OF MCMINNVILLE.

Supreme Court of Oregon, En banc.

June 26, 1928

Appeal from Circuit Court, Yamhill County; Geo. R. Bagley, Judge.

Action by May Butler, administratrix, substituted for Vandalia Williams Green, against the City of McMinnville. Judgment for plaintiff, and defendant appeals. Affirmed.

R. L. Conner, City Atty., of McMinnville, and Jay Bowerman, of Portland (Frank S. Grant, of Portland, on the brief), for appellant.

Walter L. Tooze, of McMinnville (Vinton & Tooze, of McMinnville, on the brief), for respondent.

BELT J.

Administratrix of the estate of Vandalia Williams Green, deceased prosecutes this action to recover damages for personal injuries sustained by decedent through the alleged negligence of the defendant. On November 7, 1925, at about 5:30 in the evening, decedent was going north on the west side of G street in the city of McMinnville. Upon reaching about the middle of the block, she left the sidewalk, traveling diagonally across the paved street, and over a parking strip on the east side thereof. While crossing the park strip, she stepped into a water meter box installed and maintained by the defendant city. This box was located about 18 inches from the outer edge of the sidewalk, and approximately 52 feet south of the intersection of G and Second streets. According to her testimony, there was no cover or lid on the box, and she was prevented from seeing it on account of grass which had grown up around it about six or eight inches high. She says that the opening of the box was covered with two or three small rotten sticks or boards.

It is charged that the defendant was negligent as follows: (1) In failing to place upon the meter box a cover which could not be easily displaced or removed; (2) in suffering and permitting the cover to become rotten and broken into pieces, thereby leaving the opening in the box without protection to those who might walk over it. Defendant denies that it was negligent, and alleges affirmatively that whatever injuries, if any, deceased sustained by stepping into this meter box were due to her own carelessness and negligence. The city contends that the parking strip is not a place designated for pedestrians to travel, and that it is under no legal obligation to keep the strip in a reasonably safe condition for such use. In other words, the city says that, when a pedestrian unnecessarily leaves the way designated for travel, and goes upon a park strip set aside for lawns, flowers, and trees, he assumes the risk of being injured. The defendant further relied as a defense upon section 215 of its charter, which provides:

"Section 215. Liability of City for Damages. The city of McMinnville shall not in any event be liable in damages to any person for any injury caused by any defect or dangerous place at or in any sidewalk, crosswalk, street alley, bridge, public grounds, public buildings, or ditch, unless said city shall have had actual notice of such defect or dangerous place and a reasonable time thereafter in which to repair or remove such defects or dangerous places before the happening of such accident or injury."

That part of the answer setting forth the above charter provision was, on motion of the plaintiff, stricken, for the reason that it had no application.

The trial court submitted to the jury the question as to whether defendant was negligent in the installation and maintenance of the meter box, and also as to whether decedent was guilty of contributory negligence precluding a recovery. On these issues a verdict and judgment was had for the plaintiff in the sum of $1,050. Defendant appeals.

Was the defendant city under legal obligation to the decedent in the installation and maintenance of this meter box? Did it violate its obligation? Was she injured as a result thereof? These are the questions to which our attention is first directed. Unquestionably the city, in the exercise of its governmental functions, had the right to set aside a certain portion of the street for purposes of ornamentation. It was within its province to designate the ways for pedestrian and vehicular travel. It was also clearly within its rights in placing water meter boxes on parking strips, although, in so doing, it was acting in its proprietary capacity. In determining, therefore, whether the city was negligent, we should apply to it the rules of conduct which would govern a private corporation. It is well settled here, as elsewhere that, when a municipality undertakes to supply water to its citizens for profit, it is acting in its proprietary capacity as distinguished from its governmental functions. Twohy Bros. Co. v. Ochoco Irrigation District (on rehearing), 108 Or. 38, 210 P. 873, 216 P. 189, and cases therein cited. We take it, therefore, that the trial court was right in rejecting, as immaterial, the charter provision above quoted in reference to actual notice and the right to a reasonable time in which to remedy defective conditions. What if a private corporation were defendant in the instant case? Would it be heard to say that the board of directors had passed a bylaw relieving the corporation from liability, unless it had actual notice of the defective condition of the meter box? Furthermore, can the city be permitted to say that it did not have notice of the kind of meter box which it installed? We are not dealing with a situation where the condition was brought about by the act of a third person. We conclude that the city was under obligation to...