dissenting. Ford ordered a clean tank from Stillpass. Such a tank would not have been explosive. Still-pass delivered to Ford a tank containing explosive vapors. (A Ford employee testified that a meter test of the explosion potential of the tank disclosed one of its three compartments to be 100% explosive.)
In my opinion, a jury could reasonably find and perhaps should be directed to find that the explosive character of the tank represented a defect. The tank furnished certainly contained elements of hazard excluded by the terms of Ford’s order for a clean tank.
There is evidence that Stillpass knew of this defect before it delivered the tank and that it knew how to clean the tank so as to eliminate such a defect. Also, the jury would be justified in inferring that Stillpass knew of the hazard involved in a tank containing such explosive vapors. Thus, the jury could reasonably infer that Stillpass was negligent in failing to eliminate that defect.
Obviously, the explosive character of the tank quite promptly caused the explosion that caused plaintiff’s death. Our decisions in Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio *128St. 31, 139 N. E. 2d 10 (see paragraph two of syllabus); Pennsylvania Rd. Co. v. Snyder (1896), 55 Ohio St. 342, 45 N. E. 559, 60 Am. St. Rep. 700 (see paragraphs one and two of syllabus); Thrash, a Minor, v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110 N. E. 2d 419 (see paragraph four of syllabus relating to holding Spot Motor Company liable); and Mudrich, a Minor, v. Standard Oil Co. (1950), 153 Ohio St. 31, 90 N. E. 2d 859 (see also Hiell v. Golco Oil Co. [1940], 137 Ohio St. 180, 28 N. E. 2d 561); would seem to require submission of plaintiff’s case to the jury unless the evidence is such as to require the conclusion as a matter of law that what Ford did represented “another conscious and responsible agency which could or should have eliminated the hazard” involved in the explosive character of the tank.
In my opinion, it is not. There was proffered evidence that the president of Stillpass was told that Ford “was not willing to accept the truck in the condition in which it arrived” and that he “asked that Ford * # * undertake to clean the truck * * * and then described the method which Stillpass uses to purge gasoline fumes from their tanks, by compressed air.” Ford was only getting ready to begin to do this when the explosion occurred. Thus, the jury could reasonably find from the evidence that Ford did nothing which could even have contributed to the explosion.
It is suggested that Ford should have refused the dangerous tank. If it had done so and the tank had exploded on the way back to Stillpass, Ford might have been involved in claims (even though perhaps without merit) for damages against it. Thus, the jury would be fully justified in finding that Ford exercised ordinary care and was not negligent in accepting the tank, even though it knew of its dangerous condition and had started to get ready to do what Stillpass told it to do in order to eliminate the danger. Cf. Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St. 323, 130 N. E. 2d 824, where the common carrier could more readily have eliminated the hazard caused by the manufacturer. Cf. also Thrash v. U-Drive-It Co., supra, where the U-Drive-It Company could reasonably rely upon Spot Motor Company to inspect the vehicle sold and eliminate the defect in it before reselling it since Spot *129Motor Company was and U-Drive-It was not a dealer regularly selling automobiles. (Stillpass was in the business of supplying tanks — Ford was not.)
Herbert, J., concurs in the foregoing dissenting opinion.