Duchesneau v. Silver Bow County, s. 11891

• Decision Date: 08 December 1971
• Docket Number: 12154,Nos. 11891,s. 11891
• Citation: 158 Mont. 369,492 P.2d 926
• Parties: F. P. DUCHESNEAU et al., Plaintiffs and Appellants, v. SILVER BOW COUNTY, a political subdivision of the State of Montana, and Neil Bolton, Appellants, Defendants and Third-Party Plaintiffs, v. MACK TRUCKS, INC., and Roberts Rocky Mountain Equipment Company, Third-Party/mlCASTLES, J. Paul A. TALLON, Plaintiff and Respondent, v. SILVER BOW COUNTY, Montana, et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 926

492 P.2d 926

158 Mont. 369

F. P. DUCHESNEAU et al., Plaintiffs and Appellants, v. SILVER BOW COUNTY, a political subdivision of the State of

Montana, and Neil Bolton, Appellants, Defendants and Third-Party Plaintiffs, v. MACK TRUCKS, INC., and Roberts Rocky Mountain Equipment

Company, Third-Party/mlCASTLES, J.

Paul A. TALLON, Plaintiff and Respondent, v. SILVER BOW COUNTY, Montana, et al., Defendants and Appellants.

Nos. 11891, 12154.

Supreme Court of Montana.

Submitted June 17, 1971.

Decided Aug. 9, 1971.

Submitted on Rehearing Oct. 28, 1971.

Decided Dec. 8, 1971.

Leonard Haxby, Lawrence G. Stimatz, County Atty., Butte, Mark P. Sullivan, argued, Butte, Neil J. Lynch, Butte, Knight, Dahood & Mackay, Anaconda, Wade J. Dahood, Anaconda, argued, Corette, Smith & Dean, Butte, Dolphy O. Pohlman, Jr., argued, Butte, Burgess, Joyce, Prothero & Whelan, Butte, for appellants.

Poore, McKenzie & Roth, Butte, Allen R. McKenzie argued, Butte, for respondents.

No. 11891.

HASWELL, Justice.

This is an appeal by various parties in a consolidated multiple party negligence case from separate orders granting summary judgment on the issue of liability and judgments entered accordingly. The orders and judgments were entered by the district court of Silver Bow County upon application therefor by the moving parties following extensive pretrial discovery.

On August 26, 1968, a water truck owned by Silver Bow County and operated by its employee, Neil Bolton, had an apparent brake failure and careened down a steep grade on Montana Street in Butte, Montana. It struck numerous vehicles, some of which were occupied, and crashed into the showroom of the Wilson Motor Company destroying the building. Numerous suits were filed against Silver Bow County for personal injuries and property damage. In each instance the defendant Silver Bow County filed a third party complaint naming Roberts Rocky Mountain Equipment Company and Mack Trucks, Inc. as third party defendants based upon alleged negligent design of the air brake system and negligent installation of a power steering unit.

Subsequently Neil Bolton became a defendant and third party plaintiff with Silver Bow County. Two of the plaintiffs, Joseph L. Wilson, d/b/a Wilson Motor Company, and his property insurer, Hardware Mutual Insurance Company, filed an amended complaint naming Silver Bow County, Bolton, Roberts Rocky mountain Equipment Company, and Mack Trucks, Inc. as parties defendant. The instant case represents ten suits which were consolidated for pretrial purposes, including rulings on the motions for summary judgment involved in this appeal.

Three motions for summary judgment were presented to the district court: Motion #1 asked the court to rule that the liability of Silver Bow County was limited to the extent of its liability insurance coverage. This motion was granted and is not involved in this appeal. Motion #2 was filed by plaintiff Georgia Reid, who asked for entry of summary judgment against defendant Silver Bow County on the issue of liability. It was stipulated by counsel for all plaintiffs that the decision of the court on this motion would control the suits of the other plaintiffs. The district court granted summary judgments in favor of all plaintiffs against defendant Silver Bow County on the issue of liability. This order and the partial summary judgment entered accordingly is being appealed in the instant case by defendants Silver Bow County and Bolton. Motion #3 was a motion for summary judgment and dismissal from all consolidated cases by defendants and third party defendants Roberts Rocky Mountain Equipment Company and Mack Trucks, Inc. The district court granted this motion and entered judgment thereon, from which Silver Bow County, Bolton, Joseph L. Wilson, d/b/a Wilson Motor Company, and Hardware Mutual Insurance Company are appealing in the instant case.

Pretrial discovery, principally by deposition, disclosed that the water truck in question was a 1957 Mack truck which had originally been purchased by Roberts Rocky Mountain Equipment Company. Roberts in turn sold it to the Anaconda Company, where it was used as a water truck. In 1964, Roberts again acquired the truck from the Anaconda Company, who traded it in on a new unit. Roberts refurbished the truck and in late June or early July 1965, sold it to Silver Bow County. The truck had always been equipped with air brakes, but it did not have power steering. Silver Bow County returned the truck to Roberts in March 1967 to have a power steering unit installed. The power steering unit was air operated and utilized the air tank already on the truck. This air tank also supplied air for the brakes.

On August 26, 1968, the water truck was dispatched to North Montana Street to clean the county streets just north of the Butte city limits. Bolton, the driver and an employee of Silver Bow County, flushed North Montana Street with four or five loads of water he obtained from a nearby fire hydrant. Up to this point, the brakes and the power steering unit were working perfectly. In each instance Bolton used the brakes to stop at the hydrant.

Bolton returned to the fire hydrant to refill the truck. He parked the truck on the west side of Montana Street facing south with the wheels turned to the right. When the truck was filled, Bolton got back into it, disengaged the clutch and started the engine. When the clutch was disengaged, the truck started to move. Bolton turned the truck to the left and attempted to gear it down from the second lowest gear to the lowest gear. He attempted to apply the brakes to shift into the lowest gear but when he did so, the brake pedal went all the way to the floor and he had no braking power whatever. He began racing the motor in an unsuccessful attempt to build up air pressure to operate the brakes, throwing the gears into neutral so as not to accelerate the speed of the truck in the process. There was no warning buzzer to indicate that the air pressure had been lost, but there was an air pressure gauge for the braking system on the dash which he checked and everything appeared normal at the time he got in the cab. The truck continued down Montana Street picking up speed, striking several vehicles, and finally crashing into the showroom of the Wilson Motor Company building.

The deposition of Charles Herndon, a licensed professional engineer and an associate professor of engineering at the Montana School of Mineral Science & Technology, was taken. He examined the water truck after the accident at the request of Silver Bow County. His examination revealed that when the wheels of the truck were placed in an extreme left-hand position, the left front tire would rub against one of the air lines of the power steering unit. His examination disclosed that the outer cover of the air line had been worn through and that there was a quarter inch hole in the air hose. This hole would allow air to escape into the atmosphere rather than operating the power streering. Herndon indicated that on this particular truck, the escape of air through the power steering unit, in his opinion, would deprive the truck of any braking power. He expressed his opinion that this one particular air hose was installed incorrectly so that the wheel could strike it.

Herndon further testified safe operation of the truck required that it have an audible warning device to warn of low air pressure in the braking system, and that he could find none on the truck during his examination and inspection. He also indicated that the power steering unit should have some type of device to control the air pressure, once the system started to leak. He stated that for safety purposes such a device should be located where the driver could close the line. In his inspection, he found no automatic or manual valve which would preserve air pressure for operation of the braking system on the truck if the power steering unit began to leak air.

The deposition of Harry Powley, parts manager for Roberts Rocky Mountain Equipment Company for six months, and parts man for Roberts for the preceding 10 1/2 years, was also taken. He testified that it was standard practice in the industry to equip trucks with audible warning systems and the water truck sold to Silver Bow County was equipped with such a device. He stated that Roberts had installed the power steering unit on the water truck in March 1967, and that it had been ordered from Mack Trucks, Inc. He stated the unit came in a kit and should have included both an automatic and manual shut-off valve, although he had no knowledge that they were actually installed on the truck. Powley indicated that the automatic shut-off valve was designed to shut off the power steering when the pressure in the air system drops below 55 pounds per square inch, and to preserve the remaining air pressure for operation of the air brakes. He also thought the manual shut-off valve was mounted on the outside frame of the truck where it could not be activated by the driver while sitting in the cab.

Alex Zbitnoff, the county surveyor, indicated that he did not believe the water truck was equipped with an audible warning device to indicate loss of air pressure. He also expressed the opinion that if the water truck had been free wheeling or out of gear and had attained sufficient momentum, the brakes of the truck would not have held it.

The shop foreman for Silver Bow County at the time of the accident, Frank Kinsella, testified that after the accident he became familiar with the power steering unit that Roberts installed and testified as to the purpose of the automatic and manual shut-off valves. He testified that he had no knowledge as to whether the valves were on the power steering unit at the time of the accident.

The first issue for review upon this appeal is whether the district court was correct in granting summary judgment to all plaintiffs against defendant Silver Bow County on the issue of...