(dissenting). I am in entire agreement with the rest of the court as to the liability of a manufacturer for design defects which, while not the cause of an accident, do aggravate the damages sustained, under theories both of negligence and strict products liability. On the record in this case, however, I would conclude, as a matter of law, that plaintiff user of the motorcycle by the exercise of reasonable care would have both discovered the defective design of the metal luggage rack (perilously positioned as it was, directly in front of him and between his legs as he rode) and as well inescapably have perceived the danger incident to its design and location.
I would, therefore, reverse the order of the Appellate Division and reinstate the order of Special Term granting defendants’ motion and dismissing the complaint.
Chief Judge Fuld and Judges Breitel, Gabrielli and Wachtler concur with Judge Burke ; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.
Order affirmed, without costs. Question certified answered in the affirmative.