Simmons v. Holm

• Decision Date: 22 November 1961
• Citation: 229 Or. 373,367 P.2d 368
• Parties: Carroll SIMMONS, appearing by and through Oma Simmons, his guardian, Appellant, v. Walter B. HOLM and Philip L. Voland, doing business under the firm name of Tree-Co. Industries, Respondents.
• Court: Oregon Supreme Court

Page 368

367 P.2d 368

229 Or. 373

Carroll SIMMONS, appearing by and through Oma Simmons, his guardian, Appellant, v. Walter B. HOLM and Philip L. Voland, doing business under the firm name of Tree-Co. Industries, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 13, 1961.

Decided Nov. 22, 1961.

Robert B. Duncan, Medford, argued the cause for appellant. On the brief were Duncan, Brophy, Wilson & Duhaime, Medford, and Sherman S. Smith, Grants Pass.

Hugh B. Collins, Medford, argued the cause for respondents. On the brief were Collins & Redden, Medford.

Before ROSSMAN, J. P., and PERRY, SLOAN, O'CONNELL, GOODWIN and BRAND, JJ.

BRAND, Justice.

This is an action for damages for personal injuries brought by the plaintiff Carroll Simmons, a minor, by his guardian, against defendants Holm and Voland. Upon trial, verdict and judgment were for the defendants. Plaintiff appeals, and assigns 21 alleged errors.

The Engler-Huson Company, a corporation, was also a defendant, but the trial court granted a nonsuit as to it, and plaintiff has not appealed. We are not therefore concerned with the case against that defendant.

The complaint alleges the enactment by the city of Grants Pass of ordinances numbered 1130, 1133, 194 and 281, setting them forth by title and stating that they were in effect 'at all times herein mentioned.' All allegations concerning the said ordinances are denied except that defendants admit that ordinance 281 was approved on 10 April 1907. The contents and effect of these ordinances will be considered later.

It is alleged that on the 11th day of June, 1958, the plaintiff, 14 years of age, was riding his bicycle in an easterly direction upon E Street, a public highway, in the city of Grants Pass 'at a point where said E Street is intersected on the northerly side of said street by Dimmick Street;' which, 'extending northerly from said E Street is a public highway.' It is further alleged that defendants were then operating their Gerlinger lumber carrier in a northerly direction upon and across E Street, and that it ran over the plaintiff, causing serious and permanent injuries to plaintiff, which are described and which include the loss of a leg. The specifications of negligence are (a) want of proper control, (b) want of proper lookout, (c) excessive speed under the circumstances, including 'the hazard at said intersection.' We quote the remaining specifications:

'd. The defendants caused said lumber carrier to enter a public highway from a private road or drive without stopping and yielding the right of way to all vehicles approaching upon said public highway, and particularly the bicycle operated by the plaintiff.

'e. The defendants placed and deposited piles of lumber approximately 16 feet high in E Street on the southwesterly side thereof which tended to detract from the safety of said public way.

'f. The defendants accumulated piles of lumber approximately 16 feet high in E Street on the Southwesterly side thereof and thereby blocked E Street and the plaintiff upon his bicycle from the view of the operator of said lumber carrier.'

The prayer is for $300,000 general and $10,000 special damages.

The answer is a general denial, except as admitted, and an affirmative plea that any injury to plaintiff was the result of his own negligence in that he rode at excessive speed, failed to maintain control, failed to yield the right of way to a vehicle on his right at an intersection of highways and failed to keep a proper lookout for other vehicles in or adjacent to said intersection. The reply was a general denial.

The specification in the complaint to the effect that the defendants operated their lumber carrier without keeping a lookout was withdrawn by the plaintiff. Specification 'e' quoted supra, was withdrawn by the court as too indefinite. The cause went to trial on the remaining issues.

E Street and Dimmick Street in Grants Pass, as originally platted, run at right angles to each other, and although they do not run due east and west or due north and south, we shall, for convenience, refer to E Street as running east and west and to Dimmick Street, according to the original plat, as running north and south.

On 11 June 1958 the plaintiff and his friend, Scotty Stevens, were riding their bicycles east and were coasting down the E Street hill as they approached the intersection as platted, of E Street and Dimmick Street. The defendants, by their employee, had been operating a Gerlinger lumber carrier, popularly called a 'straddle buggy', which is used in picking up, moving and replacing piles of lumber. Prior to the collision, the carrier was within the platted area of Dimmick Street, south of the south line of E Street. It started north and continued into E Street for the purpose of crossing it and picking up a load of lumber, which was in the area on the northeast corner of E and Dimmick Streets. The collision occurred not only within the platted intersection of E Street and Dimmick Street, but also within the narrower portion of E Street, which alone was available for vehicular traffic.

The unique feature of this otherwise common type of collision case is found in the fact that the plaintiff contends that the platted portion of Dimmick Street south of the south line of E Street had long since ceased to be a street and was private property, while the defendants contend that such area was still a public highway. Thus, the plaintiff contends that the rules of law governing the conduct of the parties were those applicable in the case of a collision between a vehicle, to-wit, a bicycle, traveling east on a highway and a northbound vehicle entering the highway from a private way. Plaintiff therefore relies on ORS 483.206 which, so far as relevant here, provides that 'The driver of a vehicle entering a public highway from a private road or drive shall stop and yield the right of way to all vehicles approaching on such public highway, * * *.' Plaintiff argues that it was the defendants' duty to stop and yield the right of way to the plaintiff.

Defendants, on the basis of their claim that Dimmick Street south of E Street was a public highway, rely upon ORS 483.202 which, so far as relevant here, provides that 'Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on the right, simultaneously approaching a given point, whether such vehicle first enters and reaches the intersection or not. * * *' Hence, they claim that it was the duty of the plaintiff bicyclist to look out for and give right of way to the defendants' carrier, as a vehicle on a public highway approaching an intersection and being the vehicle on the right.

The primary contention of the plaintiff is that the portion of Dimmick Street south of the south line of E Street, according to the original plat, was vacated by Ordinance No. 194 of the city council of Grants Pass, and it thus became and remained the private property of the abutting owners. This theory would appear to put the title, not in the lessee defendants Holm and Voland, but in their landlord, the Engler-Huson Company, which is no longer a party to this case.

At least six of the plaintiff's 21 assignments of error are based upon the contention that there was a valid vacation of Dimmick Street south of E Street, or on rules of law which are applicable only on the assumption that there was a valid vacation.

Our first question is whether Ordinance 194 was ever adopted by the council. The defendants claim that it was not, for the reason that it never received a three-fourths vote of the council, as required by mandatory provisions of Article VII, Section 88 of the legislative charter. See Infra. At that time the city of Grants Pass was operating under a legislative charter, approved and effective on 16 February 1901 (Special Laws of Oregon, 1901, page 355, et seq.). We take judicial notice of its provisions (ORS 41.410(3)). The charter thus enacted provided that the government of the city shall be vested in a mayor and common council, to consist of eight members, the mayor to have no vote except in case of a tie. Article III, Section 11.

Article VII, Section 83, provides that:

'A majority of the whole number constituting the council, as then provided by law, is a majority of the council or members thereof, within the meaning of this act, and not otherwise, unless expressly so provided. The concurrence of a majority of a quorum is a sufficient majority to determine any question or matters, except as in this act provided.'

Article VII, Section 88, provides:

'Every ordinance shall be read three times, and may be read the second time by title only; but no ordinance shall be placed upon its final passage upon the day of its introduction, unless in case of an emergency, and upon the vote of three-fourths of the council; and each ordinance shall receive a majority vote of all councilmen-elect, which vote shall be taken by yeas and nays, and, after approval by the mayor, as otherwise by this act provided, shall be enrolled in the book of ordinances, and its passage certified to therein in full by the auditor and police judge. Said enrolled ordinances shall be received in evidence in all courts.'

Reading Section 83 with Section 88, we conclude that an ordinance shall not be placed upon final passage upon the day of its introduction unless upon the vote of three-fourths of the whole number constituting the council, i. e., unless upon the vote of six members. If the word 'council', as used in the phrase 'a majority of the council' means the 'whole number constituting the council' as provided in Section 83, then we would infer that the phrase 'three-fourths of the council' which appears in Section 88 would mean three-fourths of the whole number constituting the council. If the statute meant three-fourths of a quorum, it would have said so.

The authorities support the proposition that the...