MacPherson v. Buick Motor Co.

Houghton, J. (concurring):

While much can be said upon the proposition that an automobile traveling at a speed of fifty miles an hour, which the machine in question was capable of making, would be inherently dangerous not only to the occupants but to a large number of fellow-travelers upon the highway, if one of its wheels *480should, collapse, I do not place my concurrence in a reversal of ■ the judgment upon the ground that the defendant put a defective article upon the market which was inherently dangerous.

It seems to me that the plaintiff by his proof made a prima facie case of negligence on the part of the defendant through failure to properly test the strength of the wheel which collapsed.

If the defendant had put a wheel on the automobile in question, designed to run at a speed up to fifty miles an hour, the spokes of which it knew were made of improper or defective wood and had covered them up with paint and varnish, there would be no question as to its liability, at least to a purchaser, although no contract relation might exist between it and him. In such case it would be conclusively presumed that the defendant knew that defective spokes would not stand the necessary strain incident to such speed, and the covering of the defects with paint and varnish and the actual or implied representation that they were fit to stand the strain would constitute a fraud upon the purchaser and user, rendering the manufacturer liable to the purchaser or user for the injuries resulting from such known defects, under the principle enunciated in Kuelling v. Lean Manufacturing Co. (183 N. Y. 78).

The defendant claims and alleges by its answer that it purchased its wheels from a reputable manufacturer. If we assume this to be so, although there is no proof on the subject, still it cannot shield itself because the manufacturer was a reputable one. Whether it made the wheels itself or purchased them from another, it was bound to make some reasonable test of the suitability of the wood before it placed such wheels upon its machines and put them on the market ready for use. If the defendant itself made the wheels some defects in the wood would be disclosed in the course of manufacture, and if it bought them from another it must use some reasonable means of ascertaining whether they were made of-proper material.

It seems to me that Torgesen v. Schultz (192 N. Y. 156) is a quite sufficient authority to uphold the plaintiff’s contention that he made a prima facie case of negligence through failure to properly test the strength of the wheel.

In that case the siphons were purchased by the defendant *481from a manufacturer in Austria. For the purpose of showing that the defendant knew that when such siphons were filled with aerated water the pressure was such that if there was any defect in the glass the siphon would burst if suddenly exposed to extreme cold, the plaintiff proved that the defendant made a test for the purpose of discovering any defects by suddenly plunging the filled siphons into ice water and allowing them to remain for a definite time. Such plunging exposed the siphons to the same coldness on all sides. It was assumed, however, that the defendant must have known that in ordinary household use siphons were often put next to the ice so that only one side would' be exposed to the extreme cold. The plaintiff proved by a series of experiments with a considerable number of siphons filled by the deféndant that a comparatively large percentage burst when the siphon was placed with only one side to a cake of ice. A nonsuit was had in the lower courts, but the Court of Appeals said that it was a question for the jury to determine whether or not, in view of the ordinary use of the siphons and the ordinary manner of cooling them, the defendant had made a-sufficient test to determine whether or not they would burst when so used.

In the case at bar, assmning the defendant’s claim to be the fact, it purchased its wheels from the Imperial Wheel Company, a reputable manufacturer. The defendant knew that when its machine was run at high speed the wheel was likely to collapse if its spokes were made of defective wood. The plaintiff proved that ordinary inspection of the wood before it was covered with paint and varnish would reveal much of the defect which existed. The plaintiff also proved that another reputable manufacturer of automobiles used a hydraulic pressure test. If the wheels were not painted when they were purchased by the defendant, according to the plaintiff’s proof, some of the defects which were shown to' exist in the broken spokes would have been disclosed by a mere inspection. If they were painted so that such defects were covered, a pressure test would probably have revealed the weakness.

Possibly the defendant may be able to show that it made all the inspection and tests that it could reasonably be required to *482do,' and that, therefore, it was not negligent. . Whatever the fact may be, it was a question for the jury to determine'whether the accident was caused through lack of proper inspection oí test or whether it was brought about through improper management of the car by the plaintiff or weakness of the wheel incident to excessive use.

For these reasons I concur in a reversal of the judgment and the granting of a new trial.

Judgment reversed and new trial granted, with costs to appellant to abide event.