Appeal from Circuit Court, Lane County. Edward Leavy, Judge.
Darst B. Atherly, Eugene, argued the cause for appellant. With him on the briefs were Thwing, Atherly & Butler, Eugene.
Paul D. Clayton, Eugene, argued the cause for respondents. With him on the brief were Luvaas, Cobb, Richards & Fraser and Johnson, Johnson & Harrang, Eugene.
Denecke, Justice. O'Connell, Chief Justice, and Holman, Tongue, Howell and Bryson, Justices.
Plaintiffs recovered damages for property destroyed by fire. The trial court tried the case without a jury.
This lawsuit was before this court in Pacific N.W. Bell v. Century Home, 261 Or 333, 491 P2d 1023, 494 P2d 884 (1972). A jury had found for defendant; however, we remanded for a new trial. Hesse v. Century Home Components, Inc., decided this date, involves the same fire and the same defendant.
The plaintiffs in their complaint alleged, in part, as follows:
"At all times material the Fire Prevention Code of the City of Eugene contained the following provisions among others, reading from the Code as enacted in 1966:
"'Section 28.7 Handling Readily Combustible Materials.' 'No person making, using, storing or having in charge or under his control any shavings, excelsior, rubbish, sacks, bags, litter, hay, straw or combustible waste materials shall fail or neglect at the close of each day to cause all such material which is not compactly baled and stacked in an orderly manner to be removed from the building or
stored in suitable vaults or in metal or metal lined, covered, receptacles or bins * * *.'"
The trial court found the fire started in defendant's trash box. The ...