Boeing Co. v. State

• Citation: 572 P.2d 8,89 Wn.2d 443
• Decision Date: 05 January 1978
• Docket Number: No. 44185,44185
• Parties: The BOEING COMPANY, a corporation, Respondent/Cross-Appellant, v. The STATE of Washington, Defendant, and The City of Auburn, a Municipal Corporation, Appellant/Cross-Respondent.
• Court: Washington Supreme Court

Page 443

89 Wn.2d 443

572 P.2d 8

The BOEING COMPANY, a corporation, Respondent/Cross-Appellant, v. The STATE of Washington, Defendant, and The City of Auburn, a Municipal Corporation,

Appellant/Cross-Respondent.

No. 44185.

Supreme Court of Washington, En Banc.

Jan. 5, 1978.

Skeel, McKelvy, Henke, Evenson & Betts, Frederick V. Betts, Paul D. Carey, Seattle, for appellant.

Scholfield & Stafford, Jack Scholfield, John G. Cooper, A. Richard Dykstra, Seattle, for respondent.

ROSELLINI, Associate Justice.

This is an appeal by one of the defendants, the City of Auburn, from a jury award and judgment in favor of the respondent, The Boeing Company, in the amount of $374,301.32 for damage to two jet engines. The damage occurred when the truck and trailer upon which they were being carried was driven through a 12-foot underpass on 'A' Street, S.E., in Auburn, also known as State Highway 167. The top of one engine struck the underside of the underpass, and the other engine was knocked to the roadway.

The driver of the vehicle, who was not an agent or employee of the respondent, admitted that he observed signs which warned of the low clearance of the underpass and could have stopped his vehicle, but because he had underestimated the height of his load he thought it was not in danger.

The contract for delivery of the engines had a clause which limited the liability of the carrier. The respondent sued the City and the State for the difference between the amount of its loss and the amount paid by the carrier. The jury exonerated the State but found the City guilty, either of maintaining a nuisance ¹ or of negligence, which was a concurring proximate cause of the accident. This court granted the City's application for direct review pursuant to RAP 4.2(a)(4).

It was the appellant's theory in this action that the driver's negligence, in failing to ascertain the height of his load, was the sole proximate cause of the accident. The respondent's theory on the other hand was: that the clearance of the underpass was so low as to constitute an inherently dangerous condition, that past experience had shown that the warning signs were not adequate to prevent accidents, and that the City should have either rerouted truck traffic or invented and installed some device which would call a driver's attention to the fact that his load was too high to clear the opening. According to its theory, had one of these alternatives been adopted, the accident would have been prevented. In the absence of such a warning device or rerouting, according to the respondent's theory, the appellant had a duty to restructure the underpass, increasing the clearance to a height which would accommodate vehicles having the maximum height permitted by law--which is 13 feet 6 inches.

It is the duty of a municipality to exercise ordinary care in the repair and maintenance of its public highways, keeping them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety. Provins v. Bevis, 70 Wash.2d 131, 422 P.2d 505 (1967). The court instructed the jury to this effect. It further instructed that, if the jury found that the appellant was negligent, but that the proximate cause of the alleged harm was a later independent intervening act of a person not a party to the case, which the appellant in the exercise of ordinary care could not reasonably have anticipated as likely to happen, the appellant's original negligence was superseded by the intervening act, and was not the proximate cause of the alleged harm. However, the court instructed, if in the exercise of ordinary care, the appellant should reasonably have anticipated the intervening act, that act did not supersede the appellant's original negligence or break the chain of proximate causation.

The appellant objected to this instruction, not on the ground that it was an incorrect statement of the applicable law, but upon the ground that the evidence conclusively showed that the negligence of the driver was the sole proximate cause of the accident. If there was competent evidence upon which the jury could find that the appellant was negligent, and the intervening negligence of the driver was foreseeable, the instruction is the law of the case.

The appellant contends there was no competent evidence to this effect. The respondent's evidence tended to show that, while such devices were not in common use at the time of this accident and were not commercially available, it would have been a fairly simple matter, employing ordinary engineering knowledge, to construct a photoelectric cell device or an overhanging chain or tube structure which would call a driver's attention to the fact that his vehicle could not clear the underpass. The employment of such a device had been proposed by the chief of police in 1966. There was other testimony showing that there had existed an awareness that a positive warning system was needed.

The appellant contends that, because such a system was not in common use and was not commercially available before this accident, to require a city to exercise ingenuity in conceiving such a system is to impose a duty of extraordinary care upon it. It cites Kilbride v. Carbon Dioxide and Magnesia Co., 201 Pa. 552, 51 A. 347 (1902), and other cases holding that negligence is not established by showing that any injury might have been prevented by the use of some device that has not yet been generally adopted.

We acknowledge this to be the general rule. However, there are extraordinary situations which may call for extraordinary measures in the exercise of reasonable care. In Blood v. Allied Stores Corp., 62 Wash.2d 187, 381 P.2d 742 (1963), a suit brought for injuries resulting from an accident on an escalator, the plaintiff sought to elicit from her expert witness testimony concerning automatic stopping devices which were available at the time of the accident, but were not standard. An objection was sustained. Because no offer of proof had been made, we were unable to consider an assignment of error directed to this ruling. However, we said at page 193, 381 P.2d at page 746:

We would be critical of a perfunctory refusal to consider new devices merely because 'they were not standard' with the various manufacturers. Although the standard practice is usually a reasonable and prudent one, and its tests are always persuasive, yet the courts, in the final analysis, must be prepared to say when additional precautions are imperative.

As stated in 65 C.J.S. Negligence § 84, at 1019 (1966):

Due care requires that the precautions taken by a person responsible for a dangerous place or instrumentality be commensurate with the dangers to be apprehended, and be sufficient under ordinary circumstances to prevent accidents and injuries; but except in extraordinary circumstances the law does not require that one employ the safest of all possible procedures in order to avoid tort liability. Accordingly, what [precautions] are reasonable must depend on the circumstances of the particular case.

Here, the respondent's evidence showed a past history of frequent accidents in spite of the warning signs posted. It further showed the appellant's awareness of the need for a more effective warning system and that in other similar circumstances governmental bodies had devised warning systems to meet the problem. This evidence was sufficient to take to the jury the question whether the appellant exercised reasonable care under the circumstances. The jury could reasonable conclude that the situation called for the exercise of some ingenuity in the solution of the problem presented by this substandard underpass--either the invention and construction of an adequate warning system, the rerouting of truck traffic, or the restructuring of the highway to correct the defect.

Nevertheless the appellant urges here, as it did in the trial court, that the negligence of the driver was the sole proximate cause of the accident. The argument discounts entirely the respondent's evidence tending to show that the situation called for either a warning which would alert the driver to the fact that his vehicle would not clear the underpass, a rerouting of truck traffic, or a restructuring of the underpass. If the jury found, as it apparently did, that in the exercise of reasonable care, one of these actions was necessary, it was entitled to find further that the failure to take such action was a proximate cause of the damage to the respondent's property. The jury was properly instructed upon the definition of proximate cause. The question was one for its determination. As we said in Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975), if two individuals commit independent acts of negligence which concur to produce the proximate cause of an injury to a third person, they are to be regarded as concurrent tort-feasors, and each is liable as if solely responsible for the injury.

It is true that, as the Court of Appeals, Division Two, said in Litts v. Pierce County, 9 Wash.App. 843, 515 P.2d 526 (1973), a case strongly relied upon by the appellant when the operative facts are undisputed and the inferences therefrom are plain and not subject to reasonable doubt or differences of opinion, the question of proximate cause of becomes a question of law, rather than a question of fact. In that case, which was one involving an intersection collision in which the driver of one vehicle failed to yield the right-of-way to an oncoming car which he observed approaching at all times, the plaintiff sought to hold the county liable for failure to properly light the intersection. Because the driver was shown to have been fully aware of the approaching vehicle, it was held that his negligence in turning in front of it was...