Leach v. School District No. 322 , 197 Wash. 384 ( 1938 )

I dissent. The majority opinion assumes that the plaintiff was a passenger. The defendant was, therefore,

". . . bound to avail itself of all new inventions and improvements known to them [it], which will contribute materially to the safety of their [its] passengers, whenever the utility of such improvements has been thoroughly tested and demonstrated, if the adoption of such improvements is within their [its] power and reasonably practicable." 10 Am. Jur. 203, § 1319.

That shatter-proof glass had been thoroughly tested and its use had become reasonably practicable long before this cause of action arose, seems to me to be beyond controversy. Indeed, so common had its use become that the legislature in 1937 saw fit to require it in vehicles registered and used in this state subsequent to January 1, 1938. Laws of 1937, chapter 189, p. 865, § 40. Of course, that act, not being effective when this accident occurred, does not make defendant guilty of negligence as a matter of law, but the act does attest to facts of which the court should take judicial notice: That, long before this cause of action arose, shatter-proof glass had been thoroughly tested; that it was available; that its use was reasonably practicable; that it affords a factor of safety to passengers of such a character that common carriers, in the exercise of the highest degree of care, are bound to equip their vehicles with it.

But the majority say that the complaint

". . . does not contain any allegation either to the effect that any such accident had ever occurred before, or that respondent reasonably could have foreseen that the accident, with its resulting injuries, would occur."

I do not believe a case can be found where a complaint in a negligence action has ever before been held deficient for want of such allegations.

Children scrambling and pushing each other to be first to get into a car or into a vehicle is too common a sight to be ignored. That common ordinary panes of glass will break if subjected to substantial pressure, is an eventuality which even a reasonably prudent person should anticipate — much more one who is charged with the highest degree of care. That injury will result to one whose arms are thrust through panes of glass, would also seem obvious.

It seems to me that this accident was readily "foreseeable," under the doctrine expounded in Hellan v. Supply Laundry Co.,94 Wn. 683, 163 P. 9:

"This court, in common with some others, has said that `any injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable,' in that the act is too remote to be a proximate cause. Ottevaere v. Spokane, 89 Wn. 681, 155 P. 146. But that language must not be taken in an absolute sense. It does not mean that the probability of injury must be so obvious as to be necessarily anticipated by the wrongdoer, nor does it mean that he must have reasonably anticipated that injury would probably result to the exact person or in the exact form or way in which it did result. 1 Shearman Redfield, Negligence (6th ed.), §§ 28, 29 and 29a."

Furthermore, this court has held that even one charged with exercising merely reasonable care (the driver of an automobile on the streets) is bound to exercise more caution with respect to children than toward adults. Blair v. Kilbourne, 121 Wn. 93,207 P. 953. Contrasting duties toward adults and toward children, in a case involving injury to a child after alighting from a school bus, this court has said:

"But the rule in that case cannot be extended to cover this one, because children will be children, where the school bus in the center of a much traveled highway at a point intersected by another road lets the children out in the middle of the highway without any warning, to go as their fancy dictates, and one of them is injured in a few feet of the corner of the bus. That is, it cannot be so held as a matter of law, but must be left to the jury." Machenheimer v. Falknor, 144 Wn. 27, 255 P. 1031.

It seems to be suggested in the majority opinion that the jostling of the children was the proximate cause of the accident. It may be properly said that the jostling of the children was a proximate cause. But if the panes of glass had not broken, the plaintiff would not have suffered injury. The rule stated inHellan v. Supply Laundry Co., supra, should be applied here:

"There may be more than one proximate cause for the same injury. The negligence of different persons, though otherwise independent, may concur in producing the same injury. In such a case, all are liable. They may be held either jointly or severally. The negligence of one is no excuse for that of another."

Believing the complaint states a cause of action, I think the judgment should be reversed.

MAIN and MILLARD, JJ., concur with BLAKE, J.