Taylor v. Eagle Point Irr. Dist.

• Decision Date: 30 December 1970
• Citation: 3 Or.App. 545,474 P.2d 774
• Parties: Mark TAYLOR, a minor, by and through George B. Taylor, his guardian ad litem, Respondent, v. EAGLE POINT IRRIGATION DISTRICT, Appellant.
• Court: Oregon Court of Appeals

Page 774

474 P.2d 774

3 Or.App. 545

Mark TAYLOR, a minor, by and through George B. Taylor, his guardian ad litem, Respondent, v. EAGLE POINT IRRIGATION DISTRICT, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Sept. 24, 1970.

Decided Oct. 2, 1970.

Rehearing Denied Oct. 30, 1970.

Review Denied Dec. 30, 1970.

William V. Deatherage, Medford, argued the cause for appellant. On the briefs were Frohnmayer, Lowry & Deatherage, Medford.

Thomas J. Owens, Medford, argued the cause for respondent. On the brief were Hogan, Courtright & Owens, Medford.

Before SCHWAB, C.J., and LANGTRY and BRANCHFIELD, JJ.

LANGTRY, Judge.

Defendant appeals from an order granting plaintiff's motion for voluntary nonsuit, made after both sides had rested and defendant had moved for a directed verdict. Plaintiff sued for damages resulting from personal injuries suffered in an accident which involved his being drawn through a culvert carrying water from one of defendant's canals. The defenses included alleged contributory negligence and assumption of risk. Plaintiff did not allege or prove that a claim had been submitted to the irrigation district prior to the commencement of the action, as required by ORS 545.562.

At conclusion of the evidence, defendant moved for a directed verdict on grounds of failure of necessary allegations and proof under ORS 545.562, and, further, that the plaintiff as a matter of law was contributorily negligent and assumed the risks. A demurrer to the amended complaint on ground of failure to state a cause of action had not been argued on the point of failure to comply with ORS 545.562, and there was no motion for involuntary nonsuit at conclusion of plaintiff's case. Therefore, the grounds stated for the motion for directed verdict apparently made plaintiff's counsel aware for the first time of his procedural oversight. He thereupon moved for voluntary nonsuit. The trial court dismissed the jury and later allowed the voluntary nonsuit. In a memorandum opinion, the court observed with reference to the motion:

'The plaintiff, who was 12 years old at the time, was injured when he entered defendant's lateral canal and was pulled through a culvert by the force of the current. The Court is of the opinion that plaintiff was not contributorily negligent as a matter of law and did not assume the risk as a matter of law. The evidence viewed in the light most favorable to plaintiff would justify a finding by the trier of the facts that the water in the lateral at the point where the plaintiff entered looked smooth and no current could be observed. Plaintiff's witnesses testified that they visited the area involved many times and would swim in the defendant's canals. A jury in this case would be warranted in finding that the defendant knew or had reason to know that children were trespassing on its property, that it knew or had reason to know that it had created a condition which involved an unreasonable risk of death or serious bodily harm to such children and that plaintiff because of his age and because of the condition of defendant's premises could not have discovered or realized the risk involved. Evidence was introduced from which a jury could conclude that changes in the culvert would eliminate the hazard and that such changes would not impede the flow of the water or affect the operation of the district. I am of the opinion that our Supreme Court because of its statements in Pocholec v. Giustina (1960), 224 Or. 245 (Pocholec v. Guistina et al., 224 Or. 245, 355 P.2d 1104 (1960)), would hold that it is for the jury to decide whether defendant met the standard of care required for immunity from liability and if not, whether plaintiff met the standard of care required of a boy of his age, intelligence and experience.

'The Court is, of course, required to either grant a directed verdict or a nonsuit as plaintiff failed to allege in his complaint or prove that he presented a claim to the defendant prior to the filing of this action * * *.

'* * *

'* * * The Court is of the opinion that it has the right to grant plaintiff's motion for a voluntary nonsuit and should do so in view of all the circumstances involved.'

The defendant asserts as error (1) that the trial court did not have authority to grant the voluntary nonsuit after commencement of trial and motion for directed verdict, and (2) the denial of the defendant's motion for a directed verdict. The plaintiff asserts that the negligence questions under the motion for directed verdict are not presented on this appeal, inasmuch as it was within the discretionary power of the trial court to grant the voluntary nonsuit and that having done so the other questions become moot. In effect, the plaintiff says the court did not deny the motion for directed verdict.

In the absence of an allegation and proof that a claim had been filed with the irrigation district as required by ORS 545.562, the motion for a directed verdict should be allowed for this reason unless plaintiff could prevent it by taking a voluntary nonsuit.

In Lewis v. Klamath Irriga. Dist., 237 Or. 466, 391 P.2d 774 (1964), an action for damages resulting from a violation of the district's alleged duty...