Kaiser v. Suburban Transp. System

• Decision Date: 07 January 1965
• Docket Number: No. 37100,37100
• Court: Washington Supreme Court
• Parties: Gertrude M. KAISER, Respondent and Cross-Appellant, v. SUBURBAN TRANSPORTATION SYSTEM, a Washington Corporation, and Richard Wagner and Emma Wagner, his wife, and the marital community composed thereof, Appellants, and Group Health Cooperative of Puget Sound, a cooperative association, Jack Faghin, M.D. and Jane Doe Faghin, his wife, and the marital community composed thereof, Respondents.

Page 461

65 Wn.2d 461

398 P.2d 14

Gertrude M. KAISER, Respondent and Cross-Appellant, v. SUBURBAN TRANSPORTATION SYSTEM, a Washington Corporation and Richard Wagner and Emma Wagner, his wife, and the marital community composed thereof, Appellants and Group Health Cooperative of Puget Sound, a cooperative association, Jack Faghin, M.D. and Jane Doe Faghin, his wife, and the marital community composed thereof, Respondents.

No. 37100.

Supreme Court of Washington, Department 1.

Jan. 7, 1965.

Lycette, Diamond & Sylvester, George W. Wilkins, Seattle, for appellants.

Burgess & Hallin, William C. Hallin, Williams, Lanza, Kastner & Gibbs, and Paul C. Gibbs, Seattle, for respondents.

HUNTER, Judge.

The plaintiff, Gertrude M. Kaiser, was injured while a passenger on a Suburban Transportation System bus when the bus driver, Richard Wagner, lost consciousness and the bus struck a telephone pole. This lapse of consciousness can be attributed to the side effects of a drug (pyribenzamine) which had been prescribed by his doctor, Jack Faghin, for the treatment of a nasal condition. The driver testified that the doctor gave him no warning concerning possible side effects of the drug, and that he took the first pill on the morning of the accident. A few miles before the accident he felt groggy and drowsy, and then he noticed that his lips and tongue were dry. He blacked out or went to sleep shortly before his bus left the road.

The plaintiff (respondent and cross-appellant), brought this action against the bus company and the driver, and, in the alternative, against the doctor and the doctor's employer, Group Health Cooperative of Puget Sound, defendants (respondents). The bus company and driver answered and cross complained against the doctor and Group Health, alleging that the sole cause of the accident was the negligence of the doctor. The doctor and Group Health denied negligence and claimed that the driver was hypersensitive to pyribenzamine. The doctor and Group Health were dismissed at the conclusion of the evidence on the grounds that the evidence did not show any standard of care to which the doctor was bound, and that even if negligent in giving no warning, the driver's negligence by not stopping when he began to feel drowsy was an intervening cause.

The trial court directed a verdict against the bus company and the driver, and the jury returned a verdict for $32,500. The bus company and driver appeal from the judgment entered upon the verdict. The plaintiff cross appeals from the dismissal of the doctor and Group Health.

Since the trial court granted a motion for a directed ver- dict against the bus company and driver, and a motion for dismissal of the principal action and cross complaint against the doctor and Group Health, we must view the evidence most strongly against the moving parties. It is only when the court can say that there is no evidence at all to support the party opposing the motion that such a motion can be granted. Miller v. Payless Drug Stores, 61 Wash.2d 651, 379 P.2d 932 (1963).

The principal argument of the bus company and driver is that there is evidence from which the jury could conclude the doctor was the only negligent party, and that his negligence was the proximate cause of the accident. They argue that when the evidence is properly viewed, the bus driver is shown to be without fault.

A physician is responsible in damages when he fails to possess such skill and learning as is usually possessed by the average member of the profession in the locality where he practices, and to apply that learning with reasonable care. Derr v. Bonney, 38 Wash.2d 678, 231 P.2d 637, 54 A.L.R.2d 193 (1951).

In this case the trial court found that no standard of care as practiced in the local community was shown. The record, however, establishes the contrary. Doctor Robert Siverling stated:

'Q (by Mr. Hallin) And with respect to the prescribing this drug is there any particular comment made by you or would you say in your experience that it would be reasonable to make any comment to the patient in connection with prescribing the drug as to these various side effects and particularly as to the side effect of drowsiness? A Well, it would appear reasonable to ascertain or at least to inform a patient of side effects that may occur from any drug.'

Doctors Smith, Van Arsdel, and Faghin all testified that a warning should be given when the drug is prescribed because of its potential known dangers. About 20 per cent of the people who take the drug experience unwanted side effects. The standard of care shown in the administration of the drug to a patient implicitly included the community in which Dr. Faghin engaged in the medical practice.

There is evidence in the record that the doctor failed to warn his patient, whom he knew to be a bus driver, of the dangerous side effects of drowsiness or lassitude that may be caused by the taking of this drug. This evidence was sufficient to submit the issue of the doctor's negligence to the jury.

It is contended that even if the doctor was negligent, his negligence was not a proximate cause of the accident by reason of an intervening act of the bus driver; that the driver should not have continued driving the bus when he knew he was becoming drowsy. It is argued that this is negligence as a matter of law, and constitutes an intervening cause. We disagree. The negligence of the bus driver is a jury question, and should the jury find the bus driver to be negligent, the doctor would nevertheless be liable if the jury finds the harm resulting to the plaintiff was in the general field of danger, which should reasonably have been foreseen by the doctor when he administered the drug.

The applicable rule is stated in Swanson v. Gilpin, 25 Wash.2d 147, 169 P.2d 356 (1946), where we quoted from Restatement of the Law, Torts 1196--7, § 447:

"Negligence of Intervening Acts. The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

"(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

"(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

"(c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent."

We also quoted from 38 Am.Jur. 726, § 70, as follows:

"The rule that the causal connection between a person's negligence and an injury is broken by the intervention of a new, independent, and efficient intervening cause so that the negligence is not actionable, is subject to the qualification that if an intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of an injury, and he may be held liable, notwithstanding the intervening cause. The intervention of independent intervening causes will not break causal connection if the intervention of such forces was itself probable or foreseeable."

Also see 65 C.J.S. Negligence § 111f; Prosser, Law of Torts (2d ed.) § 49.

The plaintiff, the doctor, and Group Health vigorously argue that this is the case of a 'sleeping driver,' and that this court should adopt a rule of strict liability when the driver of a common carrier falls asleep. They argue that the theories announced in Theisen v. Milwaukee Auto. Mut. Ins. Co., 18 Wis.2d 91, 118 N.W.2d 140 (1962), should be adopted in Washington. However, the present case is not the case of a 'sleeping driver', at least not as we must view the evidence and inferences therefrom. It is the case of a 'drugged driver.' A driver who becomes suddenly stricken by an unforeseen loss of consciousness, and is unable to control the vehicle, is not chargeable with negligence. Annot., 28 A.L.R.2d 35; 8 Am.Jur. (2d) Automobiles and Highway Traffic § 693. See Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460 (1922), and comments in Nettleship v. Shipman, 161 Wash. 292, p. 299, 296 P. 1056 (1931), in regard to Dishman, supra. We cannot say, as a matter of law, that the driver was negligent by falling asleep or fainting at the wheel, even in view of the premonitory symptoms he experienced. Our view is especially reinforced by reason of the testimony that the drug affected his judgment.

The plaintiff contends the bus driver is negligent as a matter of law because he violated RCW 46.56.010, which provides that '* * * It is unlawful for any person who is * * * under the influence of any * * * drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle upon the public highways. * * *' We do not think that one who innocently takes a pill, which is prescribed by a doctor, can be convicted of a crime under this statute and thus be negligent per se unless he has knowledge of the pill's harmful qualities. To hold otherwise would be to punish one who is not culpable.

We find the reasoning and the rule to be particularly well stated in the case of State v. Brown, 38 Kan. 390, 16 P. 259 (1888). There the defendant was charged with being drunk in a public place. The Kansas court held that the crime was Malum in se, and that if the drunkenness was produced by an innocent mistake of fact, the defendant would not be guilty. The court said:

'* * * General terms inflicting punishment upon 'any person' who might do any particular act should be construed to mean only such persons as act voluntarily and intelligently in the performance of the interdicted act. We should not suppose, in the absence of specific words saying so, that the legislature intended to make accidents and mistakes crimes. Human actions can hardly be considered as...