Petersen v. Seattle Auto. Co., Inc.

• Decision Date: 26 November 1928
• Docket Number: 21322.
• Parties: PETERSEN et al. v. SEATTLE AUTOMOBILE CO., Inc., et al. SIMMONDS et ux. v. SAME.
• Court: Washington Supreme Court

271 P. 1001

149 Wash. 648

PETERSEN et al. v. SEATTLE AUTOMOBILE CO., Inc., et al.

SIMMONDS et ux. v. SAME.

No. 21322.

Supreme Court of Washington

November 26, 1928

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Two separate actions by Bertha Petersen and husband, and by W. A Simmonds and wife, against the Seattle Automobile Company Incorporated, and another. From judgments for plaintiffs against defendant named, defendant named appeals. Judgments affirmed.

Reynolds Ballinger & Hutson, of Seattle, for appellant.

John F Dore and F. C. Reagan, both of Seattle, for respondents.

TOLMAN J.

Two separate actions were instituted by different plaintiffs against the same defendants to recover damages suffered in an automobile collsion. These actions were consolidated for the purpose of the trial below, and a jury rendered separate verdicts, one in favor of each set of plaintiffs and against the defendant Seattle Automobile Company only. Judgments were entered on the verdicts, and the Seattle Automobile Company has appealed; the cases being now consolidated for the purpose of this appeal.

The errors assigned raise only questions as to instructions given and refused. As to the instructions given, it seems to be conceded that they were excepted to only because they are inconsistent with the theory of the requested instructions which were refused, and, if we should find that the requested instructions were improper, then there will be no necessity for discussing the errors assigned upon instructions given.

To make the situation plain, we first quote sufficient of the refused requests to present clearly appellant's position:

'The latent defect of an automobile is one which is hidden and unknown and which would not be discovered by ordinary and reasonable inspection. If the accident involved in this case was caused by such a defect and said defect was unknown to Seattle Automobile Company and to its employee, Holden, you cannot find a verdict against defendant Seattle Automobile Company.'

'One who is entrusted with an automobile not his own, to be driven by him on a temporary occasion, is not bound to make any inspection of it to ascertain whether it is safe to be used upon the streets, in the absence of some knowledge on his part, or notice to him, that the same may be defective. He has the right to assume, in the absence of knowledge or notice to the contrary, that it is safe to be driven upon the streets; and he is not responsible for an accident occurring while he is driving it by reason of a defect in the automobile not so known to him, and of which he has no notice at such time prior to the happening of the accident as would enable him to take precautions against an accident of that character. Therefore, if any find that the automobile belonging to the defendant Anderson was entrusted to Holden as agent of defendant Seattle Automobile Company for a temporary purpose, and that said Holden had no knowledge or notice that said automobile was in any manner defective, then Holden was under no obligation to inspect or examine said automobile but was entitled to assume and act upon the assumption that it was safe, with reasonable care, to drive said automobile on the streets; and if you further find from the evidence that said automobile, without knowledge or notice to said Holden, was, in fact, defective or while being driven by said Holden without any negligence upon his part became defective, and that when said defect was discovered by him, if it was discovered, said Holden could not by the exercise of reasonable care prevent the accident involved in this case, and that said accident occurred by reason of such defective condition of said automobile, if it was defective, and not by reason of any negligence upon the part of said Holden, your verdict must be in favor of the defendant Seattle Automobile Company.'

'The automobile driven by Holden, the agent of the defendant Seattle Automobile Company, not belonging to said defendant nor said driver, neither said defendant nor said driver had any duty to make said automobile fit and safe for use upon the streets. If said automobile, in fact was defective and unsafe to be driven on the streets and said defendant or Holden had knowledge or notice thereof it would be negligent to drive said automobile on the streets, but in the absence of such knowledge or notice, it would not be negligence on the part of said defendant or said Holden for Holden to drive said car upon the streets in the usual way and in the exercise of reasonable care.'

'You are instructed that if a latent defect existed in the car driven by Holden, which was unknown to him at the time of the accident or at a time sufficiently near thereto that he could take precautions against the happening of the accident under investigation, and that said latent defect was the sole and proximate cause of the accident in controversy, you cannot find a verdict against the Seattle Automobile Company.'

'You are instructed that by common acceptation, an unavoidable or inevitable accident means a casualty which happens when all the means which common prudence suggests have been used to prevent it; and if you find from the evidence in this case that the brakes of the car driven by J. H. Holden suddenly gave way so that he could not operate or control the car, and that said Holden was guilty of no negligence, and that the accident complained of was the direct and proximate result of the giving way of said brakes, and that said Holden, by the exercise of reasonable care, could not prevent the giving way of said brakes or the collision which resulted in injury to said plaintiffs, then your verdict must be for the defendant, Seattle Automobile Company.'

Defendant Anderson was the owner of the Oakland car which the jury found caused the damage. Contemplating the purchase of a new car from the appellant, Anderson had intrusted his car to an employé of appellant to drive it to the appellant's place of business for the purpose of examination and the appraisal of its turn-in value. The car apparently had been so examined, and appellant's employé was returning it to Anderson's garage when he descended a steep grade and passed into an arterial highway, without stopping before such entry as the city ordinance requires, at a high rate of speed, crashing into the car occupied by respondents.

J. H. Holden, the driver of the Oakland touring car at the time of the accident, testified:

'I went down the first hill, and everything was holding all right, otherwise I would have turned to stop, but I went down the second hill and I was actually over halfway down; there is a V that turns off, and I just got beyond that--* * * The first thing I realized was that the only thing that was holding me back was my motor, as Mr. Bell stated, a car on a hill of that kind, an Oakland touring car of that year is not very heavy, and the motor will hold it down to a pretty reasonable speed. I probably agree with him that you probably could go down if you didn't meet anybody at the bottom, the whole way, without brakes, and not attain a speed of possibly more than twenty miles an hour. I suddenly realized that there was nothing holding me but my motor.'

And on cross-examination:

'Q. You say, in coming down this second hill, you realized that the engine was the only thing that was holding; what gave you that impression? A. Naturally preparing to come to a stop at the bottom of the hill, because there is always a lot of traffic on Eastlake. Q. Were you trying to operate your foot or the emergency brake? A. I tried to operate my foot brake first. Q. Did you operate the emergency brake. A. I pulled it back, yes.'

An automobile mechanic, called on behalf of the appellant, testified as follows:

'Q. Did you notice anything in the car that would cause the brakes to be inoperative? A. Yes, sir; by the motor dropping, letting it down, letting your motor drop and you have no brake, not any brake being connected onto the motor, which would make a difference in the adjustment. Q. In other words, the break in the motor leg? A. Would make a difference in your brakes. Q. That would result in inoperative condition of the brakes? A. Yes. Q. Could a person have full control of the car with the brakes becoming inoperative? A. No, sir, not on a hill.'

On cross-examination the same witness testified:

'Q. That break in that piece of iron that was holding up the engine might have been caused by this Oakland car hitting the Studebaker at the bottom of the hill, might it not? A. It might have. Q. In other words, when thouse two cars came into collision, at the bottom of the hill, that is what might have caused that break? A. It might have. Q. It would be a very likely thing to happen? A. It could happen, yes. Q. It would be a very probable thing when that car came down the hill and hit the Studebaker coming down the hill fast enough to turn it over, that something would break, isn't that true? A. Yes.'

And on redirect examination the same witness testified:

'Q. Assuming that the brakes gave way about half way up the hill, and assuming that Mr. Holden's statement, that they did give way, is true, what would you say then with

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