Dissenting:
I dissent from the conclusion reached by the majority of the court entering final judgment in this case. This conclusion, which necessarily finds, that there was no credible evidence to go to the jury, in my opinion, is not supported by the record.
The plaintiff purchased the automobile in question from a Ford agency. He had driven the car only 600 or 700 miles. He had noticed a drag on the left front wheel. After noticing this drag several times, he took the car to a garage, where a mechanic pulled the wheel and under careful tests found the brake drum out of round; being I/32nd of an inch wider in one diameter than in the cross diameter. The garage man was not equipped to correct the trouble and advised plaintiff to take the car to the Ford agency, where he had bought the car. This plaintiff did and left it. The Ford agency later took the car to plaintiff’s home, stating that it was ail right, or words to that effect.
*372Later plaintiff drove the car to a night club some twenty miles out and was returning between twelve midnight and one o’clock A. M., and traveling about 30 to 35 miles per hour. He approached a curve in the road, and put on the foot brake to slow down for the curve, when the left front wheel) the same wheel which had the unround brake drum, grabbed and threw the car to the left, over the curb and into a pole. The car was wrecked and plaintiff severely injured.
There was evidence that where a brake drum is out of round, that if in putting on the brake, the lug takes hold at the low spot it will grab at the high spot causing the wheel to lock. It seems to the writer that there was ample evidence from which the jury could infer that the defective brake was the cause of the accident, and it did so find.
The law is, that a manufacturer who puts on sale a defective instrumentality used for certain purposes is liable to a sub-purchaser for injuries resulting from such use, caused by such defect. Dow Drug Co. v Nieman et, 57 Oh Ap 190, and cases therein cited; MacPherson v Buick Motor Car Co., 217 N. Y. 382, L. R. A. 1916 F, 696.
Under this rule of law, applied to the facts in the case, the writer is of the opinion that it was purely a jury case.