Zukowsky v. Brown

• Decision Date: 02 September 1971
• Docket Number: No. 41420,41420
• Citation: 488 P.2d 269,79 Wn.2d 586
• Parties: , 1972 A.M.C. 561 Clement ZUKOWSKY and Crystal Zukowsky, husband and wife, Appellants, v. George BROWN and Marilyn Brown, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 586

79 Wn.2d 586

488 P.2d 269, 1972 A.M.C. 561

Clement ZUKOWSKY and Crystal Zukowsky, husband and wife, Appellants, v. George BROWN and Marilyn Brown, husband and wife, Respondents.

No. 41420.

Supreme Court of Washington, En Banc.

Sept. 2, 1971.

Rehearing Denied Nov. 5, 1971.

McCormick, Hoffman, Rees & Arnold, Paul Hoffman, Jr., Tacoma, for appellants.

Neal, Bonneville, Hughes & Viert, William G. Viert, Tacoma, for respondents.

NEILL, Associate Justice.

Plaintiffs appealed from a judgment of dismissal following a verdict for defendants in this personal injury action. The court of appeals reversed and remanded for a new trial. Zukowsky v. Brown, 1 Wash.App. 94, 459 P.2d 964 (1969).

We granted defendants' petition for review which challenges two of the conclusions of the court of appeals. However, plaintiffs' answer to that petition raises for review each assignment of error set forth in their opening brief in the court of appeals. By reason of this answer, we have considered all assignments of error presented there.

Plaintiff wife was injured while a guest on defendants' pleasure boat during a cruise on waters of Puget Sound. She was invited by defendant husband, operator of the boat, to sit on a seat across the passageway from his position at the helm. The seat was too high to permit her feet to touch the deck; so her legs were either dangling or wrapped around the supporting post. She had been seated 5 to 20 minutes when she turned rather suddenly on the seat to speak to her husband. The seat collapsed, throwing her to the deck, and causing the injuries for which redress is sought.

The seat was a bench type (nonswivel) with folding back. It was attached to the bulkhead by hinges permitting it to fold against the bulkhead when not in use. To use the seat, it is lifted to a horizontal position and supported by a telescoping metal post. This post is in two sections: one section, permanently attached to the underside of the seat, is designed to slip into the section attached to the deck by two screws through a flange on the base of the post. This flange is connected to the post by a hinge device which permits the post to be placed in a horizontal position when not in use. It its useable position, the seat is 40 inches above the deck of the passageway and 23 inches above the decking on which it is supported--there being a 17-inch rise from the passageway deck to the top of the locker on which the seat rested.

Immediately following Mrs. Zukowsky's fall, it was observed that the head of one screw of the supporting flange was broken off, with the body of the screw remaining in the wooden decking. The other flange screw had pulled out of the wood.

Testimony indicated that the defendant husband had removed the flange and supporting post on several occasions, but each time had replaced it with larger steel screws to insure a firm connection. Shortly prior to this accident, plaintiff husband had folded the seat against the bulkhead to obtain access to the supporting locker, but he had replaced it in its position for use.

There is no certainty as to the cause of the collapse of the seat. Experts testified concerning what may have happened. For example, if Mrs. Zukowsky lifted up on the seat, the telescoping joint of the post would separate upon a rise of 2 inches. However, if the seat were improperly assembled by reason of the post joint meeting flush instead of telescoping, the resulting angle of the seat (the inboard portion of the seat would be about 2 inches higher than the outboard side attached to the bulkhead) would be quite noticeable to a person sitting thereon. The breaking of the screw and the pulling from the wood of the other screw indicates a side or angle force incompatible with the downward pressure created by the weight of the person using the seat. Despite the varying theories of the experts, there is testimony from which a jury could find negligence of the defendants in either failing to properly set the supporting post in a telescoped position or failing to properly inspect and maintain the supporting flange at its connection with the deck.

The only evidence of conduct of the plaintiff which could be considered as having contributed to the accident is her sudden turn on the seat, accompanied by the possibility that she kicked the supporting post while turning.

The trial court instructed the jury on negligence, contributory negligence, and comparative negligence. ¹ We are in accord with the decision of the court of appeals that there was not sufficient evidence of contributory negligence to support a contributory negligence instruction and that, lacking evidence of contributory negligence, a comparative negligence instruction should not have been given.

Defendant, having injected the contributory and comparative negligence elements into the instructions, now contends that any error in these instructions was rendered moot by the defense verdict. This contention is based upon Nehrbass v. Bullan, 169 Wash. 377, 379, 13 P.2d 482 (1932), where we said:

If the charge of negligence is refuted by the jury's verdict, then the question of contributory negligence becomes immaterial, and the instructions thereon inconsequential.

In that case, the jury was instructed against considering contributory negligence as to one of three plaintiffs. The jury returned a defense verdict as to all plaintiffs. Under the particular facts, we were able to positively state that the jury had not proceeded beyond the question of defendant's negligence to consider any question of contributory negligence by the other two plaintiffs. The facts presented an exceptional situation.

In the case at bar, the exceptional circumstances of Nehrobass, supra, are not present. We cannot positively state, from the existence of a general verdict for the defendants in this case, that the jury must have determined that defendant was free from negligence and that its verdict was reached sans any influence of the erroneous instructions. The instructions spoke in comparative terms, thus encouraging the jury to consider alleged contributory negligence in conjunction with its consideration of plaintiff's alleged negligence, rather than distinct from and subsequent to that determination. Further, we cannot say with certitude that the jury did not base its conclusion on a finding that, although defendant was negligent, the conjectured negligence of plaintiff was an independent intervening cause which released defendant from liability. Under these circumstances, the rule that it is prejudicial error to instruct a jury on an issue not raised in the evidence applies. Jablinsky v. Continental Pac. Lines, Inc., 58 Wash.2d 702, 364 P.2d 793 (1961), and cases cited therein; Tergeson v. Robinson Mfg. Co., 48 Wash. 294, 93 P. 428 (1908); See generally Wiehl, Instructing a Jury in Washington, 36 Wash.L.Rev. 378 (1961). The instructions on contributory and comparative negligence constitute reversible error.

Plaintiffs are entitled to a new trial at which the jury should consider only the issues of defendants' negligence, proximate cause, and damages. However, two further matters require our attention, without which we would merely affirm the court of appeals by the simple statement that the petition for review had been improvidently granted.

The trial court refused plaintiffs' requested instruction on res ipsa loquitur. ² The court of appeals agreed on the basis that a necessary element of that doctrine is not present. We agree that the instruction should not have been given, but for a different reason. In discussing our conclusion on this point, we reexamine the applicability and procedural effect of the doctrine. These issues are questions of law. See Nelson v. Murphy, 42 Wash.2d 737, 258 P.2d 572 (1953).

We are concerned with a phrase born to the law of torts in 1863. Byrne v. Boadle, 159 Eng.Rep. 299, 2 H. & C. 722 (1863). Literally translated, the words mean 'the thing itself speaks,' and as first used by courts they meant nothing more than that the particular manner and circumstances of an accident might 'speak' sufficiently to support an inference of negligence by the trier of fact, enabling the injured plaintiff to avoid nonsuit on that issue. Thus, the phrase initially expressed a common-sense recognition of the potential efficacy of circumstantial evidence. Unfortunately, in the generations since the concept was first enshrined in Latin, the phrase has developed an almost impenetrable crust.

From that causal utterance, dignified and magnified by the cloak of the learned tongue, there has grown by a most extraordinary process the 'doctrine' of res ipsa loquitur. It is a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges.

Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183 (1949).

We in Washington have not been spared this development. It would be unwieldy and of little use to attempt a complete review of our prior case law on the subject. However, some discussion is necessary to explain our conclusions: first, that res ipsa loquitur is applicable in this case; and, second, that an instruction on the doctrine was properly refused.

We first deal with the applicability of res ipsa loquitur. In prior cases, ³ we have made use of a formula first stated by Wigmore (4 Wigmore, Evidence § 2509 (1st ed. 1905), repeated in 9 Wigmore, Evidence § 2509 (3d ed. 1940)) and set forth by Prosser as the 'conditions usually stated.' (Prosser, Torts § 42 (2d ed. 1941) at 201, and § 39 (3d ed. 1964) at 218.)

Further proof of negligence is not essential to take a case to the jury or to overcome challenges to the sufficiency of the evidence where (1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in...