[No. 35927. Department Two. Supreme Court October 5, 1961.]
LEO R. CONGER et al., Respondents, v. CORDES TOWING
SERVICE, INC., Appellant.«*»
[1] CARRIERS - NEGLIGENCE - DUTY OF CARE - TOWING SERVICE. A towing service which operates tow trucks for the purpose of transferring, among other things, disabled vehicles from place to place, is a common carrier, and is charged with the highest degree of care consistent with the trade, in both the maintenance and operation of its vehicles.
[2] SAME - EXERCISE OF CARE - JUDGMENT. A trial court's finding that a towing service had not operated its towing vehicle with a degree of care consistent With the practical operation of its business, Was supported by evidence which disclosed that the operator of the tow truck had improperly connected a weighty vehicle to his tow truck and then attempted to tow it down a steep grade, since the operator's actions constituted a mistake in judgment which established a lack of exercise of the highest degree of care required.
[3] APPEAL AND ERROR - REVIEW - FINDINGS. Where there is substantial evidence in the record to sustain a trial court's findings of fact, they will not be disturbed on appeal.
[4] DAMAGES - EVIDENCE - SEGREGATION OR APPORTIONMENT - MULTIPLE CAUSES. Where a vehicle was damaged as the result of multiple causes, for only one of which the party sued was liable, a portion of the cost of repair and the loss of use was properly allowed as damages, where the evidence clearly established that they were chargeable to the defendant.
Appeal from a judgment of the Superior Court for King County, No. 548432, W. R. Cole, J., entered November 15, 1960, upon findings in favor of the plaintiff, in an action for damages. Affirmed.
Whitmore, Vinton, Powers & Manion, by Howard T. Manion, for appellant.
* Reported in 365 P. (2d) 20.
[1] See Ann. 30 A. L. R. 750, 30 A. L. R. (2d) 1019; Am. Jur., Automobiles and Highway Traffic, § 424.
Oct. 1961] CONGER v. CORDES TOWING SER., INC. 877
OTT, J. -
Leo R. Conger and Leon Conger, doing business as Conger Brothers, are the owners of a 1948 Diamond T truck. November 6, 1959, while the truck was being operated by an employee of Conger Brothers, it was involved in a collision with an automobile. As a result of this accident, the truck had a broken headlight glass, the headlight frame and left front bumper were bent, and a core of the radiator Was punctured. The truck was mobile, but could not have been operated for any great distance due to loss of water from the radiator.
The police officer who investigated the accident directed that the truck, which was loaded with a twelve-ton caterpillar tractor, be towed from the scene rather than driven. Cordes Towing Service, Inc., was summoned to tow the truck to its destination. The operator of the tow truck elevated the front of the Diamond T truck, fastened the holdback bars between the two vehicles so that the bars were lower on the tow truck than on the Diamond T truck, and attached the two vehicles for towing.
While proceeding over a route suggested by Conger Brothers' employee, it was necessary to stop at an intersection at the foot of a hill. The weight of the towed vehicle forced the holdback bars on the tow truck from an approximately horizontal to a perpendicular position, which elevated the front wheels of the towed vehicle onto the tow truck. As a result of this accident, the left front fender on the towed vehicle was ripped, the cab was twisted out of position, and the radiator was torn loose from the frame. Repair of the truck required thirteen days.
Conger Brothers commenced this action against Cordes Towing Service, Inc., alleging that the defendant was negligent in towing their Diamond T truck. The defendant denied negligence and prayed for judgment in the amount of the towing charges.
The cause was tried to the court, which entered findings of fact (substantially as above), conclusions of law, and judgment in favor of the plaintiffs in the sum of $677.59. The defendant has appealed, assigning error to the findings of fact, conclusions of law, and judgment.
878 CONGER v. CORDES TOWING SER., INC. [58 Wn. (2d)
Appellant states its position as follows:
". . . there was insufficient evidence before the court to find that the defendant [appellant] or the defendant's agents were guilty of any negligence which proximately caused or contributed to any damages to the plaintiffs' vehicle - that no evidence was before the trial court from which a determination could be made that any such damage in fact existed and no evidence was before the court from which a legal determination of loss of use could have been made.'
[1] Appellant's first contention is that there is no evidence of negligence on its part. The appellant is a common carrier, engaged in the occupation of transferring things from place to place for hire or reward. State ex rel. Railway Express Agency v. Washington Public Service Comm., 57 Wn. (2d) 32, 354 P. (2d) 711 (1960). A common carrier is charged with the highest degree of care consistent with the trade, in both the maintenance and operation of its vehicles. Heggen v. Seattle, 47 Wn. (2d) 576, 288 P. (2d) 830 (1955).
[2, 3] In analyzing the evidence relating to appellant's negligence, the trial court said:
". . . It seems to me that it was just a mistake in judgment, and Mr. Bigelow [operator of the tow truck] shouldn't have attempted to take such a big load down such a steep grade, especially when, by his own testimony, the holdback bars were chained on the towing vehicle at a point lower than that to which the other end of the tow bars were attached to the truck, and with that much weight behind the vehicle and with one of the chains slipping off, why that was just enough to cause the whole load to shift."
From these facts, the court found that the carrier had not operated its towing vehicle with a degree of care consistent with the practical operation of its business. There is substantial evidence in the record to sustain the court's findings of fact, and they will not be disturbed. Montgomery v. Dougherty, 56 Wn. (2d) 228, 352 P. (2d) 210 (1960), and cases cited; Thompson v. Meuschke, 56 Wn. (2d) 964, 351 P. (2d) 939 (1960), and cases cited.
Oct. 1961] MILLER v. STATON. 879
Appellant's second contention is that there is no evidence to sustain the award of damages.
[4] The evidence, although in some respects conflicting, established that the damages resulting from the first collision were nominal; that the damages resulting from the second accident were substantial, and that the shifting of the cab on the frame of the Diamond T truck, together with the other items of damage, required thirteen days for repair. The testimony was uncontradicted that the rental charge for a similar truck was fifty dollars a day.
The court allowed the rental cost for loss of use and that portion of the costs of repair for the second accident which the evidence sustained. The claim for depreciation of the truck as a result of the accident was denied. The appellant was allowed an offset of $41.08 for towing charges.
The record sustains the judgment and it is affirmed.
FINLEY, C. J., MALLERY, DONWORTH, and HUNTER, JJ., concur.