Tokarz v. Ford Motor Co.

• Decision Date: 05 April 1973
• Docket Number: 769--II,Nos. 768--I,s. 768--I
• Parties: Ronald J. TOKARZ and Susan Tokarz, his wife, Respondents, v. FORD MOTOR COMPANY, a Delaware corporation, Appellant. Jerome L. LARSON et al., Respondents, v. FORD MOTOR COMPANY, Appellant, Ronald Tokarz and Susan M. Tokarz, husband and wife, and their marital community, Respondents, Robert L. Murphy and Ruthann Murphy, husband and wife, and their marital community, Respondents and Cross-Appellants.
• Court: Washington Court of Appeals

Page 645

8 Wn.App. 645

508 P.2d 1370

Ronald J. TOKARZ and Susan Tokarz, his wife, Respondents, v. FORD MOTOR COMPANY, a Delaware corporation, Appellant.

Jerome L. LARSON et al., Respondents, v. FORD MOTOR COMPANY, Appellant, Ronald Tokarz and Susan M. Tokarz, husband and wife, and their marital community, Respondents, Robert L. Murphy and Ruthann Murphy, husband and wife, and

their marital community, Respondents and Cross-Appellants.

Nos. 768--II, 769--II.

Court of Appeals of Washington, Division 2.

April 5, 1973.

H. Roland Hofstedt, Merrick, Hofstedt & Lindsey, Seattle, for appellant Ford Motor Co.

R. L. Gemson, and W. R. McKelvy, Skeel, McKelvy, Henke, Evenson & Betts, Seattle, for respondent Tokarz.

R. Scott Fallon, and Don Isham, Sullivan & Jones, Seattle, for respondent Larson.

PEARSON, Chief Judge.

Two actions for personal injuries and damages were commenced as a result of a three-car collision on Interstate Highway 5, approximately 5 miles south of Kalama, Washington. In the first action, Ronald and Susan Tokarz sought recovery against Ford Motor Company on a products liability theory for severe injuries Mrs. Tokarz received as the aftermath of losing control of the Tokarz 1968 Ford stationwagon. Occupants of another vehicle, Jerome and Nancy Larson and children, also brought a damage action against Ford Motor Company, Ronald and Susan Tokarz, and against Robert and Ruthann Murphy, who occupied the third involved vehicle. The Murphys cross-claimed for their injuries and damages against Ford and Tokarz.

The two actions were consolidated for trial, which the court limited to three issues: (1) the liability, if any, of Ford, the manufacturer; (2) the negligence of Susan Tokarz, if any; and (3) the damages sustained by the Tokarzes.

The jury determined the liability of Ford and fixed the Tokarzes', damages at $249,000. The effect of the verdict was to exonerate Mrs. Tokarz from fault and impose liability upon Ford for the injuries and damages to occupants of all three vehicles.

The thrust of Ford's appeal is to challenge the sufficiency of the evidence to establish its liability. In particular, Ford challenges the factual basis of expert testimony offered to establish the cause of the accident. This necessitates a detailed review of the evidence.

The accident occurred at approximately 1 p.m. on January 2, 1970. The day was bright, visibility was unlimited, and the pavement was dry. Mrs. Tokarz, a 26-year-old school teacher, was alone in her 1968 Ford stationwagon, driving south on I--5 in the extreme right-hand (outside) lane. The Ford was just over 1 year old, had 17,000 miles, and had never been serviced except for warranty maintenance. On this stretch of road, I--5 was straight and level, with two lanes going south and two lanes north. Some 150 to 200 feet directly behind Mrs. Tokarz, in the same lane, was a car driven by Jean Davis, whose husband was in the front seat. Each car was traveling about 65 miles per hour (speed limit 70) and the distance between the cars had not changed in the 10 to 15 minutes before the accident.

On the inside lane, Mr. and Mrs. Murphy were slowly overtaking the other two cars. As the Murphys moved past Mrs. Tokarz, the Ford suddenly swerved left towards the Murphy Cadillac, then right until it went onto the shoulder of the highway, and then left again, striking the right rear quarter of the Murphy car. The Cadillac's gas tank exploded, but Mr. Murphy was able to keep his car under control and bring it to a stop on the left shoulder of the highway, next to the median strip.

The Ford, however, spun out of control, passed behind the Cadillac, and eventually went backwards across the median strip onto the inside northbound lane. The Larson family, to their great misfortune, was traveling in that lane. The driver violently applied his brakes, but his Plymouth 'broadsided' the Tokarz Ford, the front of the Plymouth impacting the left side of the Ford, just in front of the driver. Both cars erupted into flames, and the Ford was completely consumed.

Mr. Davis and a passing truck driver extricated Mrs. Tokarz from her stationwagon. She was severely and permanently injured. Although Mrs. Tokarz was not unconscious long, if at all, she remembers nothing from the time she left home that day until recollecting the hospital room in which she lay several days later. ¹

Mrs. Jean Davis, the driver of the following car, observed most of the accident. Mr. Davis, a minister, was seated in the front passenger seat, but had his eyes diverted to the floorboard because the sun was shining brightly in the upper right corner of the windshield. Mr. and Mrs. Murphy observed the front hood portion of the Ford until it collided with their Cadillac. There were no other eye witnesses to the causative stages of the accident.

Mrs. Davis testified that she observed nothing unusual about the Ford or its driver during the period she followed it. The driver's head did not bob or jerk immediately before the accident. Neither did she observe sparks or dust emanate from underneath the Ford before the first collision. The Ford, however, 'quickly leaped into the side of the Cadillac' and she described the movement as a 'sudden jerk.' On cross-examination, Mrs. Davis agreed that the movement was similar to a sudden jerk on the steering wheel. The testimony of Mr. and Mrs. Murphy essentially corroborates that of Mrs. Davis. They testified that the Ford swerved toward, away, and then toward their Cadillac. Mr. Murphy stated that the interval between swerves was 'very short.' Mrs. Murphy summed up the Ford's action: 'suddenly it seemed to go out of control.'

Following the accident, the two truck operator, Mr. Johnson, discovered that the drive shaft of the Ford was broken and that a piece of the driver shaft was missing. He searched the area of the accident for about an hour, but did not find the missing piece. He also discovered an unusual hole under the driver's seat, directly above the drive shaft in the 'hump' of the floorboard. The floor in that area is metal and the hole was produced by a force from outside the car. The ragged edges were also peculiar in that the metal on one side of the hole was doubled over the parent metal, rather than sticking up in the air. The car was eventually taken to an auto wrecking yard owned by Mr. langley, who had been in the business for more than 20 years. In the course of his usual inspection of every car he received, Mr. Langley also noticed the hole. He remembered it well, he said, because he had never before seen a similar one in that location.

The accident scene was initially investigated by state highway troopers. Two of the officers, each with many years' experience, testified at trial. Neither officer noticed any gouges or scrapes in the concrete southbound lanes within 500 feet of the Ford that they would associate with the accident. The only marks on the road associated with the Ford that they observed were tire marks, the farthest being 234 feet from the Ford's final resting place. This tire mark was on the white center dividing line and indicated that the car was veering to the right, toward the shoulder. A private investigator, formerly with the Seattle police, and with 20 years of accident investigation experience, examined the roadway about 2 weeks later and testified that he found a significant gouge mark about 110 feet from the Ford's final position, that he definitely attributed to the broken drive shaft. The mark was straight, roughly parallel with the center line of the lane, and 9 to 11 inches long. A representative of the Tokarz insurer was present when this gouge was discovered. The two men testified that this was not the only mark in the pavement, but because of its size and configuration it was the most important.

The broken drive shaft was examined by several engineering experts. Plaintiff's ² experts testified that the driver shaft broke because of a defective weld, caused by automatic welding equipment at the factory.

Professor Kieling, one of the experts called by plaintiff, testified that 15 percent of the weld was brittle. The brittle portion was located just behind a flywheel-type balance weight attached to the drive line to eliminate noise. This weight was quite massive compared to the rest of the drive shaft. The defective weld, under stress created by bending due to a severe vibration induced by a rough road, caused the drive shaft to suddenly fail. He was clear and specific that the failure was sudden and not a 'fatigue'-type failure. Professor Kieling and one of the police officers, each of whom had personal knowledge, testified that the outside, southbound lane of I--5 was 'rough.' Professor Kieling concluded that the drive shaft failed before any collision occurred and was the cause of the Ford's jerky loss of control. In his opinion, this conclusion was compelled because (1) the Cadillac-Ford collision was not severe enough to fracture a properly welded drive line; and (2) the Plymouth-Ford impact, while it could explain a broken drive shaft, could not explain the hole under the seat. In his opinion, the hole 'had the imprint of the balance weight.' The balance weight would only have the kinetic energy sufficient to rupture the floorboard if it were rotating at highway speeds.

Another of plaintiff's experts, Mr. C. V. Smith, while not disagreeing with Professor Kieling, offered another explanation. He agreed that the weld was brittle and the drive line failure was the cause of the loss of control. In his opinion, however, there was a defect in the missing piece. Under the influence of the rough road, this piece of the drive shaft bent, actually became deformed, and caused the defective weld to separate. The bent portion of the drive shaft, rotating at 3500 revolutions per minute and flooping about under the car, could account for the peculiar configuration of the hole in the floorboard.

Both Professor Kieling...