France v. Peck
| Decision Date | 13 July 1967 |
| Docket Number | No. 38486,38486 |
| Citation | 430 P.2d 513,71 Wn.2d 592 |
| Parties | G. Clell FRANCE and Barbara M. France, his wife, Respondents, v. Clyde A. PECK, Jr., Appellant, The Wilson Motor Company, a Washington Corporation, Respondent. |
| Court | Washington Supreme Court |
John A. Henry, Seattle, for appellant.
Reed, McClure & Moceri, J. E. Thonn, Seattle, for respondent, Wilson Motor Co McCutcheon & Groshong, W. Ronald Groshong, Seattle, for respondents, france.
*
This action arose out of a three car accident at Seventh Avenue and Seneca Street in Seattle, Washington, at approximately 4 p.m. on December 16, 1961. Seventh Avenue runs renerally north-south and is intersected at right angles by Seneca Street which runs generally east-west. Seventh Avenue allowed one-way traffic only in a southerly direction, while Seneca was a two-way street. The traffic control signal at the intersection in question was of the green, amber, red type. The distance is 300 feet between Eighth Avenue and Seventh Avenue down the 8.5 percent incline of Seneca Street.
Clyde Peck was driving his 1959 model taxicab west on Seneca Street midway between Eighth Avenue and Seventh Avenue when he observed the traffic light at the accident intersection turn to amber. He applied his brakes, which held for a 'gasping minute,' but then failed completely, the brake pedal going all the way to the floor. Peck's cab entered the intersection just after the signal light turned red against him and was struck by a southbound car proceeding on Seventh Avenue with the green light. The force of the impact caused Peck's cab to swing on a southwesterly arc and collide with the front of the stopped car driven by G. Clell France. The France vehicle had been proceeding east on Seneca and had stopped on Seneca Street at Seventh Avenue for the east-west red light.
France and his wife instituted this suit against Peck to recover damages resulting from the collision. Peck joined Wilson Motor Company by a third party claim, alleging its negligence in repairs to the taxicab was responsible for the accident. The Frances then amended their complaint to include Wilson Motor Company as a defendant.
Testimony at the trial indicated the brake failure was caused by the parting of a steel brake line leading from the master brake cylinder. The break was observed after the accident by Peck and two fellow employees. The parts involved were later scrapped and so were not available at the trial. Charles Smith, a metallurgist, relying on a description of the failure, testified it could have been caused by a structural defect in the steel line at the point where it was flanged to fit into the brake cylinder. If there was a defect, at some time pressure created by application of the brake pedal would cause the metal to fail, with a consequent total loss of braking power.
Testimony was also introduced which showed Peck had regularly employed Wilson Motor Company to repair the taxi's brakes. On October 23, 1961, a work order showed the two front brakes had been relined and adjusted. On December 11, the front brakes were again relined and the brake drums were turned. Peck testified he would describe the nature of his brake problems and ask Wilson's employees to fix them. Both Peck's and Wilson's employees testified that no mention of the brake cylinder or brake lines was ever made. Alan Taylor, a Wilson employee, stated that it would not be normal or necessary to deal with the master brake cylinder pursuant to such repairs, and that there would be no occasion to remove the brake line entering the cylinder.
Appellant Peck stated he was a bit more than halfway down the block between Eighth Avenue and Seventh Avenue, traveling between 20 and 25 miles an hour, when the light turned to amber and he attempted to slow the car. His left foot was on the brake pedal, his right on the accelerator. He said he was no more than 30 feet from the intersection when the light turned red. He estimated three to four seconds elapsed between the time he saw the amber light and the collision occurred. During this time Peck continued to pump the brake pedal, attempting to gain braking power. He stated he did not use the emergency brake or honk his horn because he did not have time to think of it and because he was attempting to steer through the intersection. Respondent France estimated he saw Peck coming down the Seneca hill six to eight seconds before his car was hit.
Testimony indicated that the emergency brake on Peck's car was foot operated and was located to the left of the foot brake pedal. The vehicle was equipped with automatic transmission.
Upon completion of the evidence, Wilson Motor Company moved for a directed verdict against both plaintiffs France and defendant Peck. The trial court ruled Peck was negligent as a matter of law and therefore was contributorily negligent with respect to his third party claim against Wilson Motor Company. The court denied the motion for a directed verdict against the plaintiffs France. Pursuant to the above rulings, the jury was instructed as follows:
The court has decided that as a matter of law the defendant Clyde A. Peck, Jr. is guilty of negligence Which was a proximate cause of injury and damage to the plaintiffs and to cross-claimant Clyde A. Peck, Jr. himself.
Thus, there remains for your decision only:
a. The issue of the negligence of the defendant Wilson Motor Company as to plaintiffs, if any; and
b. The cause, nature, extent and amount of plaintiffs' injuries and damages. (Italics ours.) Instruction No. 3.
The jury found Wilson Motor Company was not negligent and fixed plaintiffs' damages against Peck in the sum of $8,000.
Appellant Peck's primary assignment of error on this appeal is that the trial court erred in finding him liable as a matter of law. The court's ruling was based on RCW 46.37.340(1) ():
Every motor vehicle, other than a motorcycle or motordriven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels.
The trial judge felt Peck had violated this statute and was thus negligent per se. He stated his reason for this finding at the time exceptions to instructions were taken as follows:
The negligence, it seems to the Court, beyond any question is not a jury question. Driving the taxicab with his left foot on the brake pedal and his right foot on the accelerator is not permitted, in my view. That part of the statute having to do with two independent braking systems states that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels, and I think the operator must so conduct himself that this is true, under the way the car is constructed.
The case was not tried on the theory that Peck was negligent in the upkeep of his brakes. Nor could it be held, or did the trial court consider there was any negligence regarding alternate action Peck took or might have taken to avoid the collision when he found the brakes had failed. The jury was told Peck was liable because the trial court believed there was negligence causing damage as a result of Peck's driving with his right foot on the accelerator and his left foot on the brake pedal.
The trial court decided two things: That Peck's conduct was violative of the standard of conduct required by RCW 46.37.340, and was therefore negligence; And that this negligence was the cause of the accident. Even assuming the first is correct, we must disagree with the second--that is, with the finding of proximate cause as a matter of law.
The rule crucial to this appeal is that a causal connection between an allegedly negligent act and...
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...damages. When no error is assigned to the amount of damages, we remand for retrial on the issue of liability only. France v. Peck, 71 Wash.2d 592, 599, 430 P.2d 513 (1967); Anthony v. C.D. Amende Co., 31 Wash.App. 21, 27, 639 P.2d 231 The jury determined Mr. Keller's damages were $1,125,000......
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...a full opportunity to protect their interests below, Mina v. Boise Cascade Corp., 104 Wn.2d 696, 710 P.2d 184 (1985); France v. Peck, 71 Wn.2d 592, 430 P.2d 513 (1967); cf. In re Bridge's Estate, 40 Wn.2d 133 (remand appropriate when unjoined necessary party had no opportunity to protect it......
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