Parker v. Holmes

• Decision Date: 08 September 1965
• Citation: 241 Or. 270,405 P.2d 619
• Parties: Belton Lamar PARKER, Appellant, v. Kenneth I. HOLMES, Respondent.
• Court: Oregon Supreme Court

Page 619

405 P.2d 619

241 Or. 270

Belton Lamar PARKER, Appellant, v. Kenneth I. HOLMES, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted July 9, 1965.

Decided Sept. 8, 1965.

Wayne G. Helikson, Eugene, argued the cause and filed briefs for appellant.

Richard Bryson, Eugene, argued the cause for respondent. On the brief were Calkins & Bryson, Eugene.

Before McALLISTER, C. J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.

LUSK, Justice.

This is an appeal from a judgment for defendant in an action based on negligence to recover damages for personal injury and injury to property growing out of a collision of automobiles.

The only question is whether the amended complaint states facts sufficient to constitute a cause of action. That pleading alleges, in its first cause of action:

'I.

'At all times material herein, Mill Street and Centennial Boulevard were paved public streets which intersect at right angles in Springfield, Lane County, Oregon; Mill Street extending north and south, and Centennial Boulevard extending east and west.

'II.

'On Apil 30, 1963, the plaintiff, Belton Lamar Parker, was driving a Ford pickup truck east on Centennial Boulevard at about 4:15 p. m. As the plaintiff drove through the described intersection, the defendant, driving an International log truck through Springfield on a southerly direction on Mill Street, drove with great force into the side of the pickup truck driven by plaintiff causing plaintiff to be thrown violently out of the pickup and to suffer serious and permanent bodily injuries as hereinafter described.

'III.

'At the time of the collision an ordinance prohibiting through truck traffic on Mill Street in the City of Springfield was in force and effect. The ordinance, Number 1609, passed by the Common Council and approved by the Mayor of Springfield, December 28, 1960, provided in part as follows:

"Ordinance No. 1609. AN ORDINANCE PROHIBITING THROUGH TRUCK TRAFFIC * * * ON MILL STREET IN THE CITY OF SPRINGFIELD, PROVIDING A PENALTY FOR VIOLATION THEREOF AND DECLARING AN EMERGENCY.

"THE CITY OF SPINGFIELD DOES ORDAIN AS FOLLOWS:

"Section 1: The Common Council does determine that the control of the driving and operation of * * * through truck traffic in the City of Springfield constitutes a matter of serious concern for the future maintenance of the City streets in the City of Springfield. The Common Council further determines that the use of Mill Street in the City of Springfield has been greatly increased by reason of certain traffic pattern changes arising out of relocation of state highways and that through truck traffic * * * on Mill Street in the City of Springfield has become excessive and should be prohibited.

"* * *

"Section 3: Any and all through truck traffic is hereby prohibited on Mill Street from Main Street to the City limits. It shall be unlawful for any person to drive or operate any truck on a through traffic basis on Mill Street from Main to the City limits.

"Any person convicted of violation of this ordinance in the Municipal Court shall be fined not less than $10.00 nor more than $200.00 for each violation thereof.

"* * *

"Section 5: The Common Council does deem that the control of truck traffic on Mill Street in the City of Springfield constitutes a matter of great concern to the peace, health and welfare of the City of Springfield and does declare that an emergency exists and that this ordinance shall take effect immediately upon its passage and approval by the Mayor.'

'IV.

'The defendant was negligent at that time and place in one or more of the following:

'1. In operating the International log truck through Springfield on Mill Street.'

The remaining allegations have to do with plaintiff's damages which are alleged to be 'a direct and proximate result of defendant's negligence.' A second cause of action, seeking to recover damages for injury to plaintiff's pickup truck, is substantially identical with the first in its allegations of negligence and proximate cause.

As originally filed, the amended complaint contained six additional allegations of negligence relating to speed, control, lookout, etc. Upon the case being called for trial counsel for plaintiff withdrew all these allegations, leaving only the allegation that defendant was negligent '[i]n operating the International log truck through Springfield on Mill Street.' Counsel for defendant thereupon objected to the introduction of any evidence on the ground that the amended complaint as thus emasculated failed to state a cause of action. The court so held and entered judgment for defendant.

As presented to the circuit court and here, the question is whether the naked charge that defendant was negligent in operating a log truck through Springfield on Mill Street and that plaintiff was damaged thereby states a cause of action. Stated differently, the question is whether violation of...