dissenting. I am in complete agreement with the majority that the plaintiffs proceeded on a theory of strict liability in tort for breach of implied warranty of fitness for ordinary use, and I wholeheartedly concur that the burden is on the plaintiffs to show that a defect existed, that it existed from the time the product left the control of the manufacturer, and that the defect was the proximate cause of the injury. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227.
The majority finds the determinative question to be whether plaintiffs proved a defect. In State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St. 2d 151, this same court concluded that in this type of case a defect may be proven by circumstantial evidence. Both plaintiffs testified that the steering assembly dropped into the driver’s lap prior to the accident.
Defendant presented four “expert” witnesses who testified for the most part that the steering assembly could not have fallen out, absent an impact, provided it was secure initially. However, the product quality engineer from Ford Motor Company who testified as an expert, after having, over objection, heard all the other testimony, opined that at least one of the defendant’s “experts” was not qualified, and then explained the testimony of the other “experts.”
At the close of the evidence, the trial judge granted a motion for a directed verdict. Civ. E. 50(A)(4) provides:
“When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such *20party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
The usual test in dealing with a motion for directed verdict is that the court does not weigh the evidence or determine credibility, but only “after construing the evidence most strongly in favor of the party against whom the motion is directed,” determines that reasonable minds could come to but one conclusion.
In most cases involving eyewitness testimony, applying the test outlined above, a motion for a directed verdict would not be granted. However, the majority says that an exception should be made here. They say that the “physical facts” here are so persuasive that the trial judge can invade the province of the jury and determine the credibility of plaintiffs’ testimony. Since this is eyewitness, soft, or subjective evidence, versus hard, objective, physical evidence, the physical evidence must prevail.
This solution, it seems to me, is an impermissible invasion of the province of the jury and a nuance in Ohio trial practice. Especially in a products liability case, if we allow what is, in effect, expert testimony, to conclusively determine whether or not a defect could have existed, we allow that evidence to determine the precise ultimate fact in issue. See Trebotich v. Broglio (1973), 33 Ohio St. 2d 57.
In addition, when it takes four experts several hours of testimony to explain the physical facts in issue, this does not seem to be the type of evidence which is ever capable of positively contradicting' the testimony of eyewitnesses. This case is not the simple ‘ ‘ dog tracks in the mud, ’ ’ it involves a complex piece of machinery which shows evidence of having fallen out of its mounting. When it fell out, or why, could not be conclusively shown by “experts” in order to positively refute the testimony of eyewitnesses that it fell out prior to the crash.
This decision, in my opinion, is an unfortunate, and ill-conceived retreat from the principles of consumer protection which had been adopted and consisently followed by this court in the products liability field subsequent to Lonzrick.