The National Safety Council works for reduction or elimination of all of the causes of accidents and injuries by a comprehensive program—namely the action program for highway safety.

DISCUSSION

Four out of five fatal accident reports show that improper driving, driver error, contributed to the accident.

Improper vehicle maintenance, a responsibility of owners, contributes to about one-half of the accidents. Nonuse of seat belts contributes to about 10 percent of the deaths. Nonuse of other available safety equipment contributes to accidents and injuries, but it is not possible to estimate a proportion.

Vehicle design can contribute to both accidents and injuries or to greater safety, but it is difficult to assess its role statistically and impossible to guess the significance of design improvements yet to be developed.

Since accident rates on the Interstate System and the turnpikes are two-thirds lower than the accident rates for other rural roads, it seems fairly logical to assume that the roadway is a factor in two-thirds of the accidents which occur off of the Interstate System and turnpikes. Further, traffic engineering treatment of high-accident locations commonly have the capacity to reduce injury and damage by one-half. Although specific roadway defects are infrequently noted in routine reports, the indirect evidence is that the roadway is a significant element in most accidents. Further, icy roads could be treated by sand or salt to improve stopping ability, so categorically there is a roadway effect.

EXHIBIT 112

NATIONAL SAFETY COUNCIL

Driver Responsibility and Traffic Accidents and Slogans, as Covered in the Denver Symposium on Mass Communications Research for Safety, Murray Blumenthal, Editor

DRIVER RESPONSIBILITY

Page 182: "The operator must always be considered as the basic component of the man-machine complex: he cannot be changed; the machine can Defects in the integration of the man-machine complex should be corrected before they can cause accidents, for if defects are present it is only a matter of time before some operator 'fails"."-McFarland, R. A.

"*** addition to or modification of the vehicle will increase safety if it reduces likelihood of serious fatigue * * * greater uniformity in placement of controls and instruments would be a real benefit to highway safety."-Engineering section of the action program.

Page 183: "There are more accidents at those places where the situation places great demand on the momentary perceptual-decision-motor capacities of the driver. The driver's basic psychophysical capacities are heavily exercised when he must deal with a situation around him that is changing rapidly. This occurs where there traffic friction or conflict is greater, that is, where one encounters more cars and where the flow of traffic is further interfered with by intersections and driveways. Accidents are most frequent in these circumstances. Accident frequency is proportional to the load or rate of demand placed on the driver's basic ability to perceive and cope with situations."-Schoppert, D. W.

Page 207: "There is *** the fundamental conception that the driver. the vehicle and the environment are basic, interacting elements of the total traffic system." (Editor's summary of selected critiques.)

Page 255: "The naive approach that places the 'blame' for accidents on human shortcomings alone will be less effective than the approach that recognizes the human-environment interaction and the need for an environment that does not make unreasonable demands on human capabilities, and that is 'forgiving' of inevitable human error."-Blumenthal, M.

Page 256: "The assumption of a single cause for an accident will *** be less productive than a conceptualization of accidents as events arising from the convergence of a series of separate events that are preventable through the altering of any one of the contributing events, often in times and places far removed from the scene of the potential accident."-Blumenthal, M.

Page 182: " ***the likelihood of human error is, in part, a function of highway geometry, vehicle characteristics and the quality and quantity of traffic flow."--Blumenthal, M.

SLOGANS

Page 79: "Slogans that do not call for specific actions, under specifically defined circumstances through specifically offered action mechanisms, cannot be expected to generate action. In this sense the slogan, 'Drive Carefully', for instance, is meaningless.”—Mendelsohn, H.

Page 173: "It is unlikely that mass communications alone will be effective in directly modifying skills, attitudes, pathology or social patterns."-(Editor's summary of selected critiques.)

Page 192: "There is agreement that mass communication cannot be used as a substitute for such measures as enforcement, engineering, design and training." -(Editor's summary of selected critiques.)

EXHIBIT 113

[23 George Washington Law Review 429 March 1955]

LEGAL REQUIREMENTS FOR THE EQUIPMENT AND DESIGN OF PRIVATE MOTOR VEHICLES: STATE ACTION AND NATIONAL PROBLEMS

(By Edgar H. Brenner*)

3

The automobile is an integral part of the American way of life. Its common use upon which all of us rely confers many benefits, but these benefits are not unalloyed the tremendous toll in death, personal injury, and property damage resulting from its use detract from its desirability. Laws governing the design and equipment of private motor vehicles are one aspect of governmental activity directed at the prevention and alleviation of automobile accidents. These laws are at present inadequate because (1) they are neither uniform nor properly enforced, (2) they do not require the use of safety design and devices known by automotive and safety engineers to be desirable for present use, and (3) their application in tort litigation where a motor vehicle from another state is involved is frequently irrational.

The raising of the legal standards for automobile design and equipment is desirable. Current interest in all phases of motor vehicle accident prevention gives hope that these standards may be raised at a faster rate than heretofore. But if new laws are enacted separately by each state, even if they were to make desirable design and equipment changes, their net effect could easily be to increase the problems derived from their lack of uniformity and to retain the irrational application in tort litigation. This paper will discuss the situation as it now exists and indicate desirable statutory solutions.

Member of the Bar of the District of Columbia; Attorney, Civil Division, Department of Justice; LL.B., 1954, Yale Law School.

1 Thirty-one million families in the United States own automobiles. AUTOMOBILE FACTS AND FIGURES 17 (1953).

* In 1952 there were 38,000 deaths as a result of motor vehicle accidents, and 1.350,000 injuries. ACCIDENT FACTS, 43 (1953). Property damage in automobile accidents was estimated at $1,500,000,000. Id. at 13. The total economic cost of both property and personal injury accidents was estimated at $3,750,000,000. Id. at 43.

Automobile travel involves about two percent of population time so that on a time basis traffic hazards are about twenty times as great as all hazards for accidental death and six to seven times as great for accidental injury. Textbook, c. X, pp. 1-2 (A textbook on traffic problems currently being prepared at the Bureau of Highway Traffic, Yale University, was made available to the author of this paper. References to the textbook are cited: "Textbook.")

3 The term "private motor vehicle", "motor vehicle", "automobile", or "car", as used in this paper, excludes trucks, buses, tractors, and taxis. The regulation of commercial transportation presents problems outside the scope of this paper because the federal government has partly occupied the field. See George, Alleged Conflict Between Federal Motor Carrier Act and Other Statutes, 22 ROCKY MT. L. REV. 13 (1949).

4 Other areas of governmental activity include, for example, driver licensing, traffic control. and highway design and construction.

A decidedly conservative estimate is that "Engineering more safety into motor vehicles until all vehicles are as safe as the safest vehicle would produce a 5 to 10% decrease in accidents." Economos, The Traffic Problem, Traffic Laws, and Traffic Courts, 287 THE ANNALS 13 (1953); Mr. Economos notes a decrease in accidents, not a decrease in the severity of personal injury resulting from them.

In a study of fatal accidents made under the direction of Mr. DeHaven, Director of Cornell University Crash Injury Research, it was concluded that in 64% of the fatal accidents, "design" changes hight have saved a life. REPORT OF THE HIGHWAY SAFETY RESEARCH CORRELATION CONFERENCE, REPORT OF GROUP H 57 (1952).

I

THE NATURE OF AUTOMOBILE EQUIPMENT AND DESIGN REQUIREMENTS Laws regulating the design and equipment of private motor vehicles have been enacted by the various state legislatures. At present, however, there is no federal regulation of either the use, design or equipment of private automobiles, though the constitutionality of such regulation has been assumed by the Supreme Court of the United States since the 1914 case of Hendrick v. Maryland. State statutes often provide that executive officers or agencies, such as motor vehicle commissioners, may make regulations to carry out the purposes of the statutes. Regulations properly made pursuant to the legislative grant of power have the effect of a statute. The statutes and regulations generally have criminal penalties for their violation." Usually it is a disdemeanor to violate them. Fines, jail sentences and revocation or suspension of the operators' license are the types of penalties imposed upon violators. These statutes and regulations are also significant in tort litigation since violation may either be negligence per se or evidence or negligence, depending upon state law.1 Under either rule the violation is relevant on the issue of civil liability if it was the "cause" of the plaintiff's injury."

For the purposes of this paper a distinction is made between the terms “equipment" and "design." The word "equipment" is used to describe devices attached to the car which can be changed or removed by the owner such as horn, windshield wipers, direction indicators, and mirrors. "Design" refers to features basic to the car from the time of its manufacture and inherently part of the car. Here would be included four wheel brakes, type of motor, body length, width and style. Regulation dealing with "design" has its primary effect on the manufacturer; that relating to "equipment," on the operator since he may add, modify, or remove equipment as he chooses.

II

LACK OF UNIFORMITY AND ENFORCEMENT OF DESIGN AND EQUIPMENT REQUIREMENTS The regulation of the design and equipment of private motor vehicles is and has always been the province of the states. Many of the first laws regulating the private car were county and municipal ordinances passed in the days when the automobile was a novelty and there were few roads.12 As automotive transportation increased, its regulation was taken over by the state governments as an incident to the exercise of their police power.13 Despite the fact that interstate automobile travel became commonplace, the Federal Government did not step into

235 U.S. 610 (1915). In this case the court said, "In the absence of national legislation covering the subject a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles-those moving in interstate commerce as well as others. . . ." (Emphasis supplied.) Id. at 622.

71 BLASHFIELD, CYCLOPEDIA OF AUTOMOBILE LAW AND PRACTICE § 73 (perm. ed. 1948). See for example, CONN. GEN. STAT. § 2461 (1949) where the Commissioner is given authority to limit the use of or authorize the use of devices or accessories which form part of any motor vehicle, or its euipment. And for an example of a Commissioner's listing of euipment approved for sale see, MOTOR VEHICLE EQUIPMENT APPROVED FOR SALE OR LEASE IN THE STATE OF MINNESOTA (1946).

81 BLASHFIELD, op. cit. supra note 7, 88 73-74. In some jurisdictions they may be evidence of negligence in a civil suit. See Note. 14 VA. L. REV. 591 (1928).

8 BLASHFIELD, op. cit. supra note 7, §§ 5301-5413. For parties who may be held criminally liable see especially § 5351. 10 See note 46, infra.

11 2 BLASHFIELD, op. cit. supra note 7, §§ 821-865.

12 See. e.g., City of Chicago v. Banker, 112 Ill. App. 94 (1904) (upholding provisions of city ordinance regulating the speed of automobiles, and requiring the use of bell or gong, brakes and lamps): Chittenden v. Columbus, 26 Ohio C.C. 531 (1904) (ordinance in question among other things required "bell." "whistle," "horn" or "gong" and lights at night). 13 See, DANIEL, TODD, FORWARD TO THE PENNSYLVANIA VEHICLE CODE, PENN. STAT. ANN. tit. 75 pp. 243-4 (1953). In Ex Parte Berry, 147 Cal. 523, 82 Pac. 44 (1905). county ordinance excluding motor vehicles from certain county roads after sunset was upheld as not unreasonable. The court noted that the ordinance would soon be superseded by a state law which apparently had not as yet been signed by the governor.

Most states have provisions in their constitutions, or by statute prohibit counties and municipalities from adopting ordinances which conflict with state laws. E.g., N.Y. Highway Law § 288. See 1 BLASHFIELD, op. cit. supra note 7. §§ 31-36; BERRY, AUTOMOBILES § 2.106 (7th ed. 1935). Consequently, problems presented by difference among design and equipment requirements are problems that exist among, not within states.

the field as it did in the case of interstate trucking by common carriers which is now regulated both by the Interstate Commerce Commission," and the states." The lack of uniformity in state regulation of private motor vehicle design and equipment presents the lurking possibility that strict enforcement of differing laws within the United States would disrupt interstate travel because of the practical impossibility of compliance with more than one contradictory law. This lurking possibility, though still a very real problem, has never fully materialized. But neither has the problem been solved; it has been avoided by a combination of undesirable practices.

16

18

The first significant legal problem to develop from the common use of motor vehicles in interstate travel was that of multiple registration. It was a common practice in many states to require all vehicles driven within the state to obtain a certificate of registration from a state official." Of course, it was a great inconvenience for a motorist to have to obtain the certificate whenever he entered a state with that requirement. In Hendrick v. Maryland a requirement of this type was challenged primarily on the ground that it obstructed interstate travel and therefore violated the commerce clause of the Constitution. Justice McReynolds in upholding the statute stated that in the absence of federal legislation nondiscriminatory and reasonable regulation was a proper exercise of the state police power." This power was allowed even greater scope by the Supreme Court in Kane v. New Jersey 20 where the nonresident in addition to registering his car was required to appoint the Secretary of State as his lawful attorney upon whom personal service on the nonresident could be made in actions resulting from the use of his car on the roads of the state. This requirement was made because at the time it was believed that only in this way could personal jurisdiction over the nonresident be insured should he leave the state after an accident and before he could be served by conventional means." The requirement was upheld by Justice Brandeis as not being in violation of the commerce clause.

19

But despite the judicial sanction of burdensome registration requirements the practical demands of interstate travel favored the granting of reciprocal rights to nonresident motorists to use the roads of the state for at least a limited period without going through any formalities provided their car was properly registered in the state of their domicile." Even these reciprocal provisions had to withstand attack on constitutional grounds. In the leading state decision on the subject, State v. Chandler 2 reciprocity was held not to deny the equal protection of the

23

14 Section 204 (a) of the Federal Motor Carrier Act makes it the duty of the Interstate Commerce Commission "To regulate common carriers by motor vehicle as provided in this part, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment." 49 STAT. 546 (1935), 49 U.S.C. § 304 (a) (1) (1952).

15 See McDonald v. Thompson, 305 U.S. 263 (1938).

16 A similar situation had previously existed in intrastate travel. State statutes requiring the registration of a motor vehicle by a county or city official were construed to grant the privilege of use only within the jurisdiction of the city or the county. Hence, if a motorist traveled about the state he would have to register his vehicle in each county through which he passed. See State v. Cobb, 113 Mo. App. 156, 87 S.W. 551 (1905). The advent of statewide licensing provisions superceded the one-county licensing system.

17 H. B. Brown writing in 1908 stated that "the automobilist has just cause to complain of state laws which require him to obtain a new number, registration and license in every state he may chance to enter, after having been properly documented in the state of his domicile." Brown, The Status of the Automobile, 17 YALE L. J. 223, 230 (1908). See also Unwen v. State 73 N.J.L., 529, 64 Atl. 163 (1906), aff'd, 75 N.J.L. 500, 68 Atl. 110 (1907) (upholding New Jersey Automobile Act of 1905); DANIEL, op. cit. supra note 13, at 253.

18 235 U.S. 610 (1915).

19 Id. at 622.

20 242 U.S. 160 (1916). Previously the same statute had been uheld by the New Jersey Supreme Court. Cleary v. Johnson, 79 N.J.L. 49, 74 Atl. 538 (1909).

Justice Brandeis assumed in the Kane case that an express provision for appointment of an agent to receive service of process, not just registration of the vehicle in the state, was necessary in order to get personal jurisdiction. See notes 24 and 25, infra. 22 H. B. Brown suggested as early as 1908 that ". There should be a provision in every state law upon the subject, exempting from registration and license automobiles which have been properly documented in their home State. Brown, supra note 17,

at 230. Prior to the Kane case, in 1908 some, but not all, of the New England states granted reciprocal exemptions of different types to non-residents. See AUTOMOBILE LAW OF THE NEW ENGLAND STATES, NEW YORK, NEW JERSEY AND PENNSYLVANIA (Legislative Reference Bureau Rhode Island State Library) 56-58 (1908).

23 131 Me. 262, 161 Atl. 148, 82 A.L.R. 1389 (1932).

laws to those nonresidents unable to benefit from the exemption. Therefore, when the constitutionality of insuring personal jurisdiction over nonresident defendants without actual registration by substituted service" on a state official was upheld in Hess v. Pawlowski" the reciprocity device could flourish without the danger of lack of personal jurisdiction over nonresidents.

The effect of the general adoption of reciprocal registration provisions was to allow most motorists in interstate travel the unrestricted use of the roads of all states by merely driving a car properly registered in one state. Nevertheless, each state maintained the right, under the reasoning of the Hendricks and Kane cases to make uniform 20 and reasonable regulation of the use, design and equipment of all cars on its roads without violating the commerce clause of the Constitution. But it is immediately obvious that if a state were strictly to enforce even reasonable equipment and design regulations against automobiles registered in states with different requirements, practical obstruction of interstate travel would result. One car could not reasonably be required to comply with varying laws of more than one jurisdiction because of the expense and delay involved in making changes whenever a state border was crossed.

28

Attempts have been made to encourage the adoption of uniform state equipment laws. Since 1926 the National Committee on Uniform Traffic Laws and Ordinances" has recommended the adoption of a Uniform Vehicle Code which in its present form has five acts covering motor vehicle registration, licenses," financial responsibility,30 civil liability," and "traffic on the highways." This last is covered in Act V which is entitled "Uniform Act Regulating Traffic on the Highways" and deals in part with motor vehicle equipment. Act V is one of the two most important acts in the Uniform Vehicle Code" and has been adopted in part in thirty states. But no state has accepted Act V in toto.35 Rather, the state legislators accept parts which are in accord with their views, make changes, and reject the rest. Consequently, the Act has had only slight effect on making state

33

24 Under substituted service statutes the operation of a motor vehicle on the roads of the state by a nonresident is deemed the equivalent of the appointment by him of a state official as his agent upon whom service of process against the nonresident can be made. See, e.g., CONN. GEN. STAT. § 7779 (1949).

Biggs, J.

25 274 U.S. 352 (1927). The first non-resident motorist statute was that of Massachusetts enacted in 1923 (and upheld in Hess v. Pawlowski). Now "Every one of the forty-eight states and the District of Columbia has a non-resident motorist statute. . dissenting in McCoy v. Siler, 205 F. 2d 498, 502 (3d Cir. 1953). For a statement of the arguments against the constitutionality of substituted service, made prior to the Supreme Court decision in Hess v. Pawlowski, see Konop, Service of Process on Non-Resident Motorists, 2 NOTRE DAME LAW, 181 (1927).

26 "Uniform" in this sense means not discriminatory against nonresidents; it does not cannote uniformity among the laws of different states. See Kane v. New Jersey, 242 U.S. 16, (1916).

27 The National Committee on Uniform Traffic Laws and Ordinances is part of the President's Highways Safety Conference. "The Committee includes more than 100 repre sentatives of highway, police, motor vehicle, and other officials, Federal, State and local; legislators courts; schools and colleges; manufacturers of vehicles and equipment; highway and other transportation; insurance: motor clubs: safety councils, women's and other civil, legal, engineering, business, and labor organiaztions." UNIFORM ACT REGULATING TRAFFIC ON HIGHWAYS, iv (Bureau of Public Roads, Department of Commerce 1952).

28 Act I, UNIFORM MOTOR-VEHICLE ADMINISTRATION, REGISTRATION, CERTIFICATE OF TITLE, AND ANTI-THEFT ACT. (Bureau of Public Roads, Department of Commerce 1952).

29 Act II, UNIFORM MOTOR-VEHICLE OPERATORS' CHAUFFEURS' LICENSE ACT (Bureau of Public Roads, Department of Commerce 1952).

30 Act IV, UNIFORM MOTOR-VEHICLE SAFETY RESPONSIBILITY ACT (Bureau of Public Roads, Department of Commerce 1952).

31 Act III, UNIFORM MOTOR-VEHICLE CIVIL LIABILITY ACT (Bureau of Public Roads, Department of Commerce 1952).

32 At the beginning of Act V the following are listed as the "Advantages of Uniformity": "The traffic confusion, conflicts, delays, and accidents due to non-uniform or obsolete laws are only too well known to the driving public, police, and courts.

"Uniformity on the subjects covered in this act will:

1. Enable drivers (and pedestrians) throughout the country to know what they and others are expected to do in given situations.

2. Permit a standard pattern of instruction for all new drivers, regardless of where they live or where they are going to drive.

3. Do away with obsolete, unreasonable laws that confuse everyone and breed disrespect for all law.

4. Facilitate uniform, reasonable enforcement; know out the common excuse that "1 didn't know your law-it's different where I come from"; improve the relations between motorists, police and the courts.

5. Protect motorists against substandard, unsafe "gyp" equipment. All reputable manufacturers of vehicles and equipment conform with the specifications in the Uniform Act. 6. Help bring much needed uniformity of traffic signs, signals, and markings. . . .” 23 Art. XVI.

34 See, e.g., SIXTY MILLION DRIVERS WANT UNIFORM TRAFFIC LAWS, NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES 9.

35 Stark, Uniform Traffic Laws and Ordinances, 5 TRAFFIC QUARTERLY 72 (1951).