(dissenting) — This case, in its essential parts, involved a joint effort by two small businesses, one of which possessed a common carrier permit.
The facts are that the plaintiff needed a 45-ton piece of equipment moved to a new logging site. Defendant had a lowboy trailer that could do the job. The plaintiff’s employees loaded the crawler log loader on the lowboy and accompanied defendant to direct the way. In the course of the move, as the majority notes, "the truck bogged down on a freshly graveled, steep, logging road."
Plaintiff had a Caterpillar bulldozer in the vicinity, but to the rear of the lowboy. It was proposed to use the bulldozer in an effort to extract the'truck from its predicament. In order to get the bulldozer past the bogged-down equipment, it was necessary to reposition the boom on the log loader, which plaintiff's employee did. Cables were attached to the bogged-dówn truck and the bulldozer attempted to "snap pull" it onto firmer ground. In the course of this activity in which plaintiff's employees were involved, the *262log loader slid off the lowboy, down an embankment and was damaged.
The majority finds that strict liability is the proper standard of liability for a common carrier and holds that RCW 4.22.010 is inapplicable. I disagree.
The majority cites portions of RCW 81.29.020 as formulating the standard of liability for common carriers in Washington. Initially, it should be noted that the purpose of this statute is to prohibit carriers from limiting their liability contractually, not to define the standard of liability. The majority then states that strict liability of common carriers is the law in Washington, quoting an excerpt from McCurdy v. Union Pac. R.R., 68 Wn.2d 457, 462, 413 P.2d 617 (1966), to support this proposition. Both the McCurdy court and the majority cite with approval the summary of the duty of common carriers found in 13 C.J.S. Carriers § 40, at 84.
As stated in Conger v. Cordes Towing Serv., Inc., 58 Wn.2d 876, 878, 365 P.2d 20 (1961), and cited with approval in McCurdy, the standard of care imposed upon a common carrier is "the highest degree of care consistent with the trade, in both the maintenance and operation of its vehicles." Assuming that the admittedly high standard of care imposed upon common carriers is equivalent to "strict liability", it does not necessarily follow that consideration of fault on the part of the plaintiff/shipper is precluded as a damage reducing factor.
Section 78 of the same title of C.J.S. relied upon by the majority has this to say of shipper responsibility:
[A] carrier is responsible for the safe carriage of goods only when it has exclusive possession and control thereof. Accordingly, if a shipper accompanies the consignment and undertakes to perform certain duties of the carrier, that fact becomes a material consideration in determining the liability of the carrier; and the carrier is not liable for any injury or loss that may occur through the act of such shipper . . . nor is the carrier liable for injuries to a shipment occasioned by improper interference of the *263owner with the carrier's management of the transportation.
(Footnotes omitted.) 13 C.J.S. Carriers § 78, at 145.
The majority finds that RCW 4.22.010, Washington's comparative negligence statute, is "by its terms" limited to situations in which the defendant could use the plaintiff's contributory negligence as an absolute bar to recovery. The statute does not "by its terms" proscribe its use in instances where contributory negligence would not be a complete bar to recovery. Rather, the language is "but any damages allowed shall be diminished in proportion to the percentage of negligence attributable to the party recovering." I am also unconvinced by the majority's formalistic distinction between the reference to "causation" in RCW 81.29.020 and to "negligence" in RCW 4.22.010.
Although a higher standard of care is imposed, common carrier liability is premised upon fault. The situation may be distinguishable from policy based strict products liability. Even so, the rule regarding comparative negligence and products liability remains unclear in Washington. Cf. Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977).
In the case of products strict liability, the Supreme Court of California was perhaps the first court in the nation to give judicial sanction to the principles that are presently being applied in some form or other in most states. Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963). This court adopted the principle of strict liability in Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969). In the recent case of Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978), the California Supreme Court was faced with the application of comparative negligence principles to a case of product strict liability. The court begins its opinion as follows:
The most important of several problems which we consider is whether the principles of comparative negligence expressed by us in Li v. Yellow Cab Co. (1975) 13 *264Cal. 3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226, apply to actions founded on strict products liability. We will conclude that they do.
(Italics mine). Daly v. General Motors Corp., supra at 730.
While California adopted the principle of comparative negligence by judicial decision and Washington by legislative enactment, I discern no reason why that should make a difference in the application of the principle to strict liability cases. The cases and commentaries concerning this issue are collected by the court in Daly at pages 739-41.
Regardless of legal authority, the idea just makes good sense. As .the court commented in Daly at page 737:
[A]s to that share of plaintiffs damages which flows from his own fault we discern no reason of policy why it should ... be borne by others.
In the present case, there is no logical or equitable reason why plaintiffs proportion of damages which flowed from the action (fault) of his employees should be visited on defendants.
I am of the view that the rule in Daly makes eminent good sense and I would adopt it in this case.
I dissent.
Utter and Brachtenbach, JJ., concur with Hicks, J.