Ellsworth v. General Motors Corp.

Mikoll and Herlihy, JJ.,

dissent and vote to affirm in the following memorandum by Herlihy, J. Herlihy, J. (dissenting). Plaintiff Pearl Ellsworth purchased a new 1973 Chevrolet manufactured by defendant General Motors Corporation. On November 3, 1973, when the car had the relatively low mileage of about 1,500 miles, she allegedly experienced momentary difficulties with its steering. Later in the day, plaintiff Betty Thrasher was operating the vehicle with the Ellsworth plaintiffs as passengers when it allegedly became difficult or impossible to steer, going first across the left lane onto the left shoulder and then, when she was suddenly able to turn the steering wheel right, going out of control until it struck a building. Plaintiff DeForrest Ellsworth had no personal knowledge of the above events as he was not in the vehicle when Pearl Ellsworth initially had steering difficulties, and he was asleep in the vehicle at the time Betty Thrasher had the accident. Plaintiff Pearl Ellsworth was unable to recall any of the events directly involved in Betty Thrasher’s accident. Betty Thrasher and Pearl Ellsworth gave their testimony as to the accident and the difficulties steering the vehicle on November 3, 1973. There was no other eyewitness although other witnesses described the accident scene following the accident, giving evidence of the physical condition of the path followed by the car, the condition of the car itself, and the building with which it collided. Plaintiffs offered expert evidence tending to establish that the steering mechanism was defective when it left the control of defendant. Further, evidence was adduced which tended to establish that defendant was aware of a potential contamination of the fluid in its *831steering mechanism by a deposit of metal particles in the manufacturing process of the steering mechanism and took no steps to remedy that condition on the Ellsworth vehicle. Although defendant offered expert testimony and established various facts which could have resulted in a verdict of no cause of action in the cases of Pearl Ellsworth and Betty Thrasher, the jury found those plaintiffs free from contributory negligence and further found that defendant was negligent in its placement of the vehicle in the stream of commerce and that the steering mechanism was defective when it left the factory as well as at the time of the accident. The jury found that a defect in the steering mechanism was the proximate cause of the accident as well as that the negligence of defendant was a proximate cause of the accident. Plaintiffs factually established a prima facie case both on the grounds of strict products liability and negligence and the jury verdicts were not against the weight of the evidence. (See Caprara v Chrysler Corp., 52 NY2d 114; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 385, 387-388.) Defendant also asserts several errors relating to the admissibility and exclusion of evidence, the trial court’s charge to the jury, the refusal of the trial court to make certain charges, and includes in its statement of questions presented: “Was the verdict the result of a prejudiced jury?” Upon considering all of defendant’s arguments, it is our view that either singularly or collectively they do not provide a basis for reversal of the judgment for legal error. Examination of the record reveals that the Justice presiding at the Trial Term fairly and impartially considered all questions submitted to him by the parties before, during, and after the trial. In this context, the refusal to admit the entire file of defendant relating to its correspondence with a Federal agency (the United States Department of Transportation’s National Highway Traffic and Safety Administration) was not reversible error. Assuming it was error, it is not so prejudicial as to warrant a new trial in view of the clear finding of strict products liability by the jury and, further, the correspondence admitted in evidence shows a complete investigation by defendant. It should be noted that the court charged: “Defendants’ experts testified that the power steering system is designed and manufactured so that metal particles and wear debris cannot cause a malfunction.” Finally, the refusal of the trial court to charge section 1120 of the Vehicle and Traffic Law on the question of contributory negligence of Betty Thrasher was not reversible error as concluded by the majority. The statute requires drivers to drive on the right side of the road and plaintiff Betty Thraser clearly did cross into the left lane of the highway. However, there is no proof in this record that the failure to keep right, a violation of the statute, in any way contributed to the accident. The statute governs the right of way of vehicles on the highway and the present accident was totally unrelated to the statutory right of way for this vehicle. While a failure to obey the directive of the statute does support an inference of negligence, there is no possibility that such a failure constituted contributory negligence in this case. In its charge, the trial court specifically set forth the contention of defendant “that this accident occurred because Betty Thrasher was guilty of negligence in the operation of the vehicle in that she steered the vehicle to the left and onto the left shoulder of the road”. The charge, in its entirety, was not prejudicial to defendant on the issue of contributory negligence. The court submitted to the jury eight specific questions concerning the law of products liability and negligence as to all parties. That the jury understood the issues involved is best exemplified by its answers to the questions resolving the issue of products liability in favor of plaintiffs, and the issue as to negligence was likewise answered in favor of plaintiffs. The judgments should be affirmed.