Thomas v. Inland Motor Freight, 26527.

• Decision Date: 24 May 1937
• Docket Number: 26527.
• Citation: 68 P.2d 603,190 Wash. 428
• Parties: THOMAS v. INLAND MOTOR FREIGHT.
• Court: Washington Supreme Court

68 P.2d 603

190 Wash. 428

THOMAS v. INLAND MOTOR FREIGHT.

No. 26527.

Supreme Court of Washington

May 24, 1937

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Emma Thomas, as administratrix of the estate of Alfred Thomas, deceased, against the Inland Motor Freight. From a judgment for the plaintiff, the defendant appeals.

Reversed with directions to grant defendant's motion for new trial.

Edge &amp Wilson, Brown & Weller, and Norman de Pender, all of Spokane for appellant.

Tustin & Chandler, A. J. Hutton, and C. C. Quackenbush, all of Spokane, for respondent.

ROBINSON Justice.

Alfred Thomas was killed at Springdale, Wash., on June 7, 1935, while driving a freight truck with attached trailer from Spokane to Colville. In approaching Springdale, traveling northward, there is a long down-hill grade with a sharp semicircular curve to the right just Before reaching the railroad crossing. For some reason, Thomas failed to negotiate this curve. His truck went off at a left tangent somewhere about the middle and overturned. Thomas was pinned under the cab and burned to death Before he could be extricated. The trailer remained upright on its wheels.

The widow of the deceased, as administratrix, brought this suit, setting up three separate causes of action, or, more accurately speaking, three grounds of recovery stated in separate counts. As a first ground, it was alleged that the death was proximately caused by the negligence of the defendant in that it failed to furnish him with a truck with suitable and efficient brakes in proper repair.

In view of certain questions raised on the appeal, it is important to determine and keep in mind the issue tendered by the so-called second cause of action. We quote portions of the pleading:

'The plaintiff herein alleges that the legal capacity of the truck driven by the said Alfred Thomas on the morning of June 7, 1935, while he was in the employ of the defendant, Inland Motor Freight, herein and under which he met his death was less than the actual load on said day; that the legal capacity of the trailer attached to the truck driven by the said Alfred Thomas on the morning of June 7, 1935, while he was in the employ of the defendant, Inland Motor Freight, a corporation herein, was less than the actual load on said day. * * * that the deceased Alfred Thomas did not know but the defendant, Inland Motor Freight, herein did know that said truck and trailer were overloaded and loaded greatly in excess of the amounts allowed by law but notwithstanding said knowledge on the part of the defendant, Inland Motor Freight herein and its officers and agents, they had in disregard to said overloading instructed the said Alfred Thomas to proceed with said load to Colville, Washington. * * * that the action of the defendant, Inland Motor Freight herein in overloading said truck and failing and neglecting to inform the said Alfred Thomas of the weight carried was negligence and was the direct and proximate cause of said action which resulted in the injury and death herein alleged and had the defendant, Inland Motor Freight herein loaded the truck and trailer in accordance with its carrying capacity and the amounts provided by law said accident and consequent injury and death of the said Alfred Thomas would not have happened.'

The third ground of action need not be noted since it was withdrawn from the jury during the progress of the trial.

The defendant denied that the brakes were defective; that the truck and trailer, or either of them, were loaded beyond the legal limit; that the plaintiff sustained damage in any sum by reason of any negligence of the defendant; and pleaded affirmatively contributory negligence and assumption of risk.

The trial resulted in a verdict for the plaintiff. Motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were timely made and denied, and judgment entered.

In appealing from the judgment, the defendant specifically appealed from the ruling made on its motions after verdict and also from every adverse ruling made by the court during the course of the trial.

The questions presented on appeal have, in spite of the excellent abstract furnished, necessitated an examination of the entire statement of facts and the thirty-nine exhibits attached thereto. As the statement is more than 800 pages in length and there are 14 assignments of error, it is obvious that we cannot separately discuss all of the assignment or detail all of the evidence.

After reading the statement of facts, we were of the opinion, and are now of the opinion, that the court did not err (1) in denying a nonsuit at the close of plaintiff's evidence; (2) in refusing, at the close of plaintiff's evidence, to withdraw from the consideration of the jury the claim of negligence on the ground of defective brakes; (3) in denying defendant's motion for a directed verdict at the close of all of the evidence; (4) and in denying defendant's motion for judgment notwithstanding the verdict. But we are of the opinion that the court erred (1) in admitting certain opinion evidence; (2) in admitting Exhibits 14 and 15; (3) and in refusing to withdraw from the consideration of the jury the claim of negligence based on alleged loading beyond legal limits, and it is our conclusion that these errors were harmful to appellant and that its motion for a new trial should have been granted.

There were no eyewitnesses to this accident. There was no direct evidence that the brakes of either truck or trailer were defective. There was a wealth of evidence, both oral and photographic, that after the accident there appeared a well-defined mark on the pavement made by the tires of a dual wheel, being first visible on the straightaway about 18 or 20 feet Before the curve began and extending around the outside edge of the curve and under the trailer, a distance of about 138 feet, to where the truck left the road, indicating that the left dual rear wheel of the truck slid or skidded that distance. Upon this mark on the pavement, the respondent's case was grounded and built up by the use of inference and opinion evidence.

The truck was equipped with an emergency brake, which operated on its transmission and a service or foot pedal brake, which functioned by expanding shoes on the inside of the drums attached to the inside of the dual wheels at each end of the rear axle of the truck and on the rear axle of the trailer. Depressing the front pedal operated to set up friction at four points; that is to say, in two brake drums on the rear axle of each vehicle. Connection between truck and trailer was made by air hose and the whole arrangment was made more effective by a 'booster' arrangement, the only function of which was to step up and multiply the power applied to the foot pedal through the use of vacuums produced by the engine of the truck.

Mr. Goodwin, a resident of Springdale, who arrived on the scene very shortly after the accident, during the course of testifying what he saw there, said that he was a blacksmith and auto mechanic and that he owned and operated a light truck, and had driven logging trucks. He testified, among other things, that the fact that there was but one skid mark indicated to him that a pin had given away inside the brake drum, allowing the shoe to expand, or, as he expressed it, 'that either one of the holes where the pin goes through or the pin itself could have burned or worn in two and let it come loose and lock the wheel.' It was later shown that witness was speaking of the internal mechanism of the brake which could not be seen or inspected without removing the wheel. The truck was 6 or 7 years old at the time of the accident, and, from evidence subsequently introduced, the jury was warranted in believing that the truck had operated 12,000 miles since that wheel had been removed.

There was another line of expert testimony tending to support the claim of defective brakes. Mr. Blackwell was called purely as an expert. He had been in the motorcar and truck business for more than 20 years. He also had driven logging trucks and was very familiar with truck braking systems, because, as he said, it was necessary to know his competitor's line of goods. He testified in part that the physical facts detailed to him, and particularly the long skid, indicated unequal braking; that the brakes were applied more effectively or severely on one set of the dual wheels than on the other, and that the brakes were not in good condition in that they were not properly adjusted. He suggested that one way to test brakes was to drive a truck for two or three blocks, making several brake applications; but a more thorough way, and the only way to determine whether internal parts were worn, was to pull the wheels. He stated also that brakes could be tested in the garage by starting the truck at a reasonable rate of speed and applying the brakes to slide the wheels, and, if they all slide, it can be assumed that they are working perfectly.

It will be noted that there was a curious divergence in the views of the experts. To Mr. Goodwin, the skid mark indicated that something gave way, causing the left rear dual wheel of the truck to lock and slide. To Mr. Blackwell, the skid mark indicated that the left rear dual wheel was functioning as it should, while the other three were not.

The defendant introduced evidence to the effect that Thomas had been in its employ for about a year and a half, and had been driving the Colville route for about 6 months prior to his death. He made three round trips one week and four the next. Usually he left Spokane around 2:30 in the morning and arrived at Colville about 6:30. Here, he turned the truck over...