Stark v. Allis-Chalmers & Northwest Roads, Inc., ALLIS-CHALMERS

• Decision Date: 20 April 1970
• Docket Number: ALLIS-CHALMERS,No. 107--40585--I,107--40585--I
• Citation: 2 Wn.App. 399,467 P.2d 854
• Parties: Helen M. STARK, as Executrix of the estate of Robert Stark, deceased, Appellant, v.AND NORTHWEST ROADS, INC., Respondent.
• Court: Washington Court of Appeals

Page 399

2 Wn.App. 399

467 P.2d 854

Helen M. STARK, as Executrix of the estate of Robert Stark deceased, Appellant, v. ALLIS-CHALMERS AND NORTHWEST ROADS, INC., Respondent.

No. 107--40585--I.

Court of Appeals of Washington, Division 1, Panel Two.

April 20, 1970.

Rehearing Denied June 8, 1970.

Review Denied July 1, 1970.

Daniel Goodwin and John F. Raymond, Seattle, for appellant.

Lee, Carney & Smart, R. Jack Stephenson, Seattle, for respondent.

UTTER, Judge.

Helen Stark, as executrix of the estate of her husband, Robert Stark, sought to recover from the manufacturer and seller of a new tractor for his alleged wrongful death. She claimed they were liable on grounds of negligence, products liability and breach of warranty. The trial court entered a judgment on the jury's verdict dismissing appellant's cause of action. She appeals.

Appellant argues the court erred in submitting instructions on assumption of risk and contributory negligence. She also urges the court should have admitted evidence concerning the feasibility of installing certain safety measures and should not have admitted evidence about the lack of prior similar occurrences.

Robert Stark was a heavy equipment operator employed by the University of Washington. On August 19, 1965, Stark was using an HD6G front-end loader tractor to level a lot on the university campus. The tractor was a new model manufactured and sold by Allis-Chalmers. It had been purchased by the university to replace an older front-end loader tractor Stark had operated for at least 7 years. Stark filled the tractor's bucket with a load of heavy clay and was backing the tractor to carry the clay to another area of the campus. According to a witness, the rear of the tractor pitched up and Stark was thrown over the hood of the machine and crushed between the bucket and the hood.

Appellant's first assignment of error is that the court erred in giving instruction 16:

One knowing and comprehending a danger, who nonetheless voluntarily exposes himself to injury from such danger, is deemed to have assumed the risk of such exposure and is precluded from recovery for an injury or death proximately resulting therefrom.

Appellant contends her husband lacked knowledge of any risk involved in operating the tractor in the manner in which he was at the time of his death. The question whether a plaintiff had knowledge of a risk is normally a question of fact and is properly one for the jury to consider.

There was evidence in the record from which the jury could have found Stark was an experienced heavy equipment operator, was familiar with the operational characteristics of front-end loader tractors and had operated one for several years prior to his death. There was also testimony that he had operated the tractor in question for several weeks prior to his death and had used the term 'bucking bronco' to describe its operation and, as an experienced operator, was aware the tractors' stability could be improved by carrying the bucket close to the ground, carrying a smaller load and traveling at a slower speed. We believe there was sufficient evidence to submit the issue of assumption of risk to the jury.

There is also sufficient evidence that his assumption of the risk was voluntary. The jury could have found from the facts that Stark had been warned by a fellow worker not to operate the tractor with the bucket high in the air; that his supervisor did not order him to operate the HD6G in the manner in which he was at the time of the accident; that, as an experienced operator, he knew the tractor could be operated in a different and probably safer manner and that he chose to operate the machine at high speed. The jury was entitled to find Stark made his choice to operate the machine as he did knowingly and without any outside compulsion.

Appellant argues the court erred in allowing the defense of assumption of risk in a products liability case. Restatement (Second) of Torts § 402A (1965) dealing with strict liability in the products liability area, was adopted by the court in Ulmer v. Ford Motor Co., 75 Wash.Dec.2d 537, 452 P.2d 729 (1969). Comment N of that section allows the defense of assumption of risk in products liability cases and was followed in Arrow Transp. Co. v. A. O. Smith Co., 75 Wash.Dec.2d 856, 454 P.2d 387 (1969). The assumption of risk theory was properly submitted to the jury.

In Brown v. Quick Mix Co., 75 Wash.Dec.2d 845, 454 P.2d 205 (1969), the court, speaking of the element of appreciation of danger in assumption of risk cases, stated:

the fact that a danger is patent does not automatically free the manufacturer from liability, but does so only if the plaintiff voluntarily and Unreasonably encounters it.

Instruction 16 told the jury to consider whether appellant knowingly and voluntarily exposed himself to the risk but did not ask the jury to further inquire if his exposure was unreasonable.

Appellant took exception to instruction 16 but did not argue the instruction was defective in its omission of the question of the unreasonability of Stark's action. The general rule is that failure to adequately apprise the trial judge of the point of law or fact upon which an exception rests will leave the instruction as the law of the case. Samuelson v. Freeman, 75 Wash.Dec.2d 904, 454 P.2d 406 (1969). The Samuelson case went on to establish an exception to this rule. The court there indicated that where the law is laid down clearly, cogently and convincingly by the highest tribunal in the state, the court and parties are bound by those explicitly declared principles until they have been authoritatively overruled. It further stated it would be unfair and unjust to hold a party's acceptance of explicitly declared principles as controlling precedent, constituted a waiver on their part or estopped them from later raising the point on appeal if the rule was changed between the trial and the time of the argument of the appeal.

The exception does not apply here. This case was tried prior to Ulmer where our court adopted the rule of strict liability in products liability cases. Counsel for appellant prevailed upon the court, in spite of this, to instruct on his products liability theory as set forth in Restatement (Second) of Torts § 402A (1965). His failure to urge to the court that the additional principles contained in comment N of § 402A should also be given to the jury in instructions, precludes him from raising that point now on appeal. There was no controlling precedent for jury instructions in the area of products liability in this state at the time this case was tried and appellant cannot bring herself under the exception to the general rule stated in Samuelson.

Appellant assigns as error the court's refusal to admit evidence relating to the installation of a curved bar on the hood of the tractor by the university shortly after Stark's death. The court rejected this testimony on two grounds. It, in effect, held testimony of subsequent safety measures was not relevant unless the issue of feasibility was raised by the defense and that the appellant could not amend his theory of negligence after failing to mention lack of a grab bar in interrogatories directed to the subject.

Prior to Brown v. Quick Mix Co., Supra, the...