dissenting.
I regret to say that I am forced to dissent from the majority opinion for two reasons: (1) the majority completely misunderstands the plain meaning of the language of the statute in question, and (2) the majority misunderstands the case law that preexisted the statute.
The sole issue in this case is the application of ORS 487.045, which provides:
“Unless otherwise specifically provided, the provisions of chapter 451, Oregon laws 1975, except those relating to a serious traffic offense, do not apply to persons, motor vehicles and other equipment employed by the United States, this state, any county, city, district or other political subdivision or a public utility while on a highway and working or being used to service, construct, maintain or repair the facilities of the utility, or to persons, motor vehicles and other equipment while operated within the *130immediate construction project, as described in a governmental contract, if there is a contract, in construction or reconstruction of a street or highway when the work is being done in an area that is signed in accordance with the manual adopted under the provisions of ORS 487.853, but shall apply to such persons and vehicles when travelling to or from such facilities or construction project.”
To me, the language could not be clearer. Unless an individual who is on the road is a person employed by the United States, this state, a county, city, district or other political subdivision or a public utility or is a person employed by someone who is under contract to one of the aforementioned entities, the rules of the road apply to that individual. It is admitted in this case that the plaintiff is not such a person. Thus, the plain language of the statute forecloses the issue raised by the appellant.
However, the majority attempts to make an issue out of the language of the statute: “The issue before us is whether the enactment of these statutes has changed the rule announced in Graves v. Portland, Etc. Power Co., [66 Or 232, 134 P 1 (1913)].” (60 Or App at 126.) Inasmuch as the language is clear, no such issue arises. However, and assuming that such an issue arises, the majority misunderstands the rule of Graves.
A fair reading of Graves indicates that it is a case involving a person who would have fallen within the present exemption of ORS 487.045, i.e., a person who was either employed by a municipality or was employed by someone who was under contract to a municipality to repair a road. Thus, the distinction that the majority purports to find between “those whose work requires that they be in the road and pedestrians ‘who use the street merely as medium of locomotion’ ” (60 Or App at 127) is interesting, but it has no basis in the case law. The real distinction— indeed, the only distinction for our purposes — is between those who are described in ORS 487.045 and those who are not. The majority’s reference to “the general rule that workers in the road are not treated as pedestrians” is also interesting, but the only rule that is pertinent is that which has been followed in Oregon. I submit that no case in Oregon has ever excused a worker from exercising the *131standard of due care which is imposed on the public generally except cases in which the worker was employed by a municipality or was working for an employer who was under contract to a municipality.
Nothing in the majority’s discussion of the legislative history is of any help, either. The majority seems to think that the present legislation was not intended to change the rule of Graves. I agree, but I understand the rule of Graves to be far more limited than that espoused by the majority, i.e., I believe the rule of Graves to be that which is stated in the explicit language of the statute.
The crux of this case comes down to the following quote from the majority:
“* * * Although it is true that both Graves v. Portland Etc. Power Co., supra and McCarty v. Hedges et al, [212 Or 497, 309 P2d 186 321 P2d 285 (1958)], involved workers who were engaged in construction or maintenance of the highway, the rationale for the rule is not limited to those who are working for public bodies. A job such as plaintiff was performing for a private survey company legitimately required that he position himself in the roadway. There is no reason that a surveyor should be expected to pay less attention to his work because he is working for a private survey crew, than if he were working for a survey crew employed by the state. The rule in Graves was not limited by its terms to those working for a public body and we see no reason that the rule should be so limited. * * *” (60 Or App at 128.)
The majority’s argument again is most interesting. It starts out by acknowledging that the cases in point in Oregon deal only with people who apparently were covered by the explicit language of the present statute. It then goes on to say, however, that the language of the two cases could have been applied to persons who did not fall within the specific language of the statute. It then concludes that, because the language could have included such people, it did in fact include such people. Finally, the majority then concludes that the explicit language of the statute must be read to include more than it appears to, because the doctrine on which it is based could have been applied to more persons than the doctrine was actually applied to by the cases. This *132is a fascinating piece of logic, but a terrible piece of statutory construction.
Having no difficulty in reading the statute in question to mean precisely what it says, I respectfully dissent.