Mollencop v. City of Salem

• Decision Date: 08 March 1932
• Citation: 8 P.2d 783,139 Or. 137
• Parties: MOLLENCOP v. CITY OF SALEM.
• Court: Oregon Supreme Court

8 P.2d 783

139 Or. 137

MOLLENCOP v. CITY OF SALEM.

Supreme Court of Oregon

March 8, 1932

Department 1.

Appeal from Circuit Court, Marion County; H. L. McMahan, Judge.

Action by Mrs. J. F. Mollencop against the City of Salem, for damages because of personal injuries alleged to have been sustained by plaintiff in being thrown to the ground while attempting to step over a sagging wire at defendant's airport. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Robin D. Day, of Salem, for appellant.

William H. Trindle, of Salem, for respondent.

KELLY, J.

The testimony discloses that during the time mentioned herein defendant was the owner of the airport in question; that on the 6th day of August, 1929, an agreement in writing was executed by defendant and one Lee Eyerly, by the terms of which it was agreed that for a term of two years said Eyerly would superintend the operation and management of said airport, and, among other things, collect all fees and rentals for the city, make a report to the city on the first of each and every month, and at that time account and pay over to the city all revenues due the said city; it being therein further provided: "That in event field lighting equipment is installed during the period of this contract the city shall furnish and pay for the electricity and power to operate such equipment; and furnish all equipment necessary for fueling and servicing aeroplanes where such equipment is not already installed on the airport field;" that the use of said field by said Eyerly is "subject to such rules and regulations as the city council may from time to time adopt and impose; *** in event the party of the second part shall engage in any regular transport service to or from the field he shall pay and account for the regular fees as are exacted from others engaged in similar operations to or from the said airport field; *** and except the things mentioned herein, the city shall have as its own to lease, sell or operate any and all concessions or things appurtenant or connected with the operation of the said municipal airport which might be of profit and produce revenue for the city of Salem."

That on the 30th day of March, 1930, pursuant to a published advertisement that aeroplane flights would then be afforded to the public at said field at the rate of one cent per pound of weight of each individual applying and paying therefor, plaintiff with other members of her family repaired to said airport. That for about ten minutes before getting out of her automobile to go upon said flying field plaintiff observed the crowd which was there and saw that it was passing over the wire in question. That at a distance of thirty or forty feet from where plaintiff entered the grounds in the proximity of the scales which were being used to weigh the passengers, who were taking flights, "they were calling for people to come and be weighed." Plaintiff testified that she looked for an entrance or passageway through the wire to said scales but found none; that plaintiff, with an infant in her arms, walked along said wire until she came to a low place; then, while she was in the act of stepping over the wire, some one gave the wire a jerk or flip and threw plaintiff violently to the ground. Plaintiff testified that one end of the wire was fastened to a tree but she was unable to say where or how the other end attached.

That among the other specifications in plaintiff's complaint it is charged as negligence: "That the defendant stretched, placed and maintained a single wire across its airport field about twelve or fifteen inches above the ground between the entrance of said airport field and its scales where said defendant directed its invitees and the plaintiff herein to be weighed; *** that defendant failed to make a passageway through said wire; that the defendant did not keep proper attendants to prohibit raising, casting about and lowering of said wire; that while plaintiff was passing over said unguarded wire as an invitee of the defendant at said airport, by reason of defendant's failure in not having said wire securely fastened so that the same could not be raised and lowered, *** without fault upon her part, plaintiff stepped over the same with her left foot and as she was raising her right foot over said wire defendant herein wrongfully and carelessly raised and permitted said wire to be raised so as to trip plaintiff, and the same did trip her, causing her to fall on the ground." At the conclusion of plaintiff's testimony, defendant moved for an order of nonsuit, "on the grounds and for the reason that plaintiff has failed completely to prove any of the material allegations of his complaint and particularly has failed to prove the city was operating the municipal airport in a proprietary and not a governmental capacity, and has failed to prove the city was negligent in any manner whatever when contributed in any way to the injury complained of by the plaintiff."

The written contract discloses that the city was not devoting the airport exclusively to municipal or governmental uses, but had undertaken to conduct an enterprise there of a commercial character from...