Dingley v. Fechheimer Estate Co. ( 1931 )

Petition for rehearing denied November 3, 1931 ON PETITION FOR REHEARING (4 P.2d 316) Appellant earnestly urges that error was committed in construing section 516 of the building code of the city of Portland relative to railings on stairways. Further consideration convinces us that this section has no application to the facts herein for the reason that the building in question was not in existence at the time of the enactment of the ordinance and has not been altered or repaired within the meaning of sections 68 and 69 of the building code. It is suggested that we have failed to take into consideration section 67 which provides: "REGULATIONS COVERING MAINTENANCE. "Section 67. The regulation given in this code covering the maintenance of buildings or structures shall apply to all buildings now existing or hereafter erected. All parts of buildings or structures shall be maintained in good condition, and all devices or safeguards which are required by the code at the erection, alteration or repair of a building or structure shall be maintained in good working order."

The provision that "all parts of buildings or structures shall be maintained in good condition" is merely declaratory of the common law rule that passageways in public buildings shall be maintained in a reasonably safe condition. The requirement that "all devices or safeguards * * * shall be maintained in good working order" has no application herein for the reason above stated, viz, the building was erected prior to the enactment of the ordinance and it has never been altered or repaired to the extent specified in sections 68 and 69 of the building code. We adhere to the conclusion expressed by Mr. Justice RAND in the original opinion that the provisions of section 516 have no retroactive effect and that they apply only to buildings erected subsequent to the enactment of the ordinance or to those which have been altered or repaired as above stated.

That part of the opinion is withdrawn wherein it is stated "there was no other act of negligence charged in the complaint." What Mr. Justice RAND undoubtedly had in mind was that there were no other allegations of negligence pertinent to the inquiry as to whether the defendants could be held liable in damages by reason of failure to have an inside railing on the stairway.

Aside from any ordinance, if it were shown by the greater weight of the evidence that the defendants were guilty of the breach of some common law duty, as alleged in the complaint, and that such was the proximate cause of the injury (the plaintiff being free of contributory negligence), he would be entitled to prevail.

The petition for rehearing is denied.