dissenting:
I concur in most of Judge Wright’s well considered opinion. Specifically I agree that District of Columbia law governs both substantively and procedurally; that the District of Columbia recognizes strict liability for manufacturers who place on the market defective merchandise which later injures a consumer; and that circumstantial evidence is admissible to prove the existence of a defect.1
The majority opinion recognizes that cases holding that the existence of a defect may be proved by circumstantial evidence have indicated that the burden remains on the plaintiff to present evidence which (1) would tend to negate causes other than a defect in the product, and (2) would suggest that whatever defect might have existed was introduced into the product by the defendant. I am unable to agree with the majority that the evidence here was sufficient to negate causes other than a defect in the automobile.
At the outset, as noted in Prosser, Law of Torts, § 103, pp. 671-673 (4th Ed. 1971), “The proof required of a plaintiff seeking to recover for injuries from an unsafe product is very largely the same, whether his cause of action rests upon negligence, warranty, or strict liability in tort.” Prosser continues in part:
“The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt. .
“The mere fact of an accident, standing alone, as where an automobile goes into the ditch, does not make out a case that the product was defective, nor does the fact that it was found in a defective condition after the event, where it appears equally likely that it was caused by the accident itself. But the addition of other facts tending to show that the defect existed before the accident, such as its occurrence within a short time after sale, or proof of the malfunction of a part for which the manufacturer alone could be responsible, may make out a sufficient case, and so may expert testimony.”
In his discussion of “Circumstantial Evidence — Res Ipsa Loquitur,” Dean Prosser says in part: “The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonable causes to which the accident could be attributed.” Prosser, Law of Torts, § 39, p. 218.2
The applicable rule with respect to negating other causes of an accident is articulated in the cases upon which the majority relies. In Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631, 640 (8 Cir. 1972),3 the court, in holding that plaintiff was entitled to have her case submitted to the jury on the theory of strict liability in tort, said in part: “If she can show that the crash was caused by some unspecified defect and that no other cause is likely, she *409has made a submissible case”, added.) (Emphasis
Franks v. National Dairy Products Corporation, 414 F.2d 682, 687 (5 Cir. 1969), was an action for injuries caused by an “explosion” of shortening manufactured by the defendant. In holding that the trial court in its findings properly inferred that the explosion was due to a defect in the shortening, the court said in part:
“Thus, although there was no proof of a specific, identifiable defect, the trial judge concluded that a defect in the shortening was the cause of the splattering because such a defect is the only thing that could have caused the explosion. In short, the existence of a defect was the only reasonable inference that was left. The burden of proof was not thereby shifted: Appellee still had the burden of proving that the explosion was caused by a defect in appellant’s product. It was not necessary, however, for appellee to show the specific defect in order to meet that burden.” (Emphasis added.)
Greco v. Bucciconi Engineering Company, 407 F.2d 87, 91 (3 Cir. 1969), was an action by a steel company employee against the manufacturer of a magnetic steel piler. In holding that the evidence concerning malfunction of the piler from the time of its installation by the steel company was sufficient to permit an inference that the piler was defective at the time of sale, the court said in part: “We also think that there was ample evidence for the jury to find that the piler was not abnormally used, and that appellee negated all reasonable causes for the malfunction, except manufacturing defect.” 4 (Emphasis added.)
More nearly in point factually, but still distinguishable, is Bollmeier v. Ford Motor Company, 130 Ill.App.2d 844, 265 N.E.2d 212 (1970), an action in strict liability against the manufacturer for personal injuries sustained when an automobile driven by the owner’s son left the road as a result of alleged steering gear failure. As noted in the majority opinion, there was no evidence of drinking, and the driver testified that he was traveling at a reasonable speed. In addition, however, there was evidence that from the time the car was delivered “the Bollmeiers observed a vibration which could be seen and felt in the steering column and steering wheel” and also heard a “humming noise.” Mrs. Bollmeier testified that the car had been taken to the garage “several times due to the vibration and no one at the garage told her not to drive it. Although vibration was always present when the car was driven, no one experienced any difficulty with the steering prior to the time of the accident”. In holding that the trial court erred in directing a verdict for the defendant on the issue of implied warranty, the court noted that “there was substantial evidence that there was some malfunction in the car which manifested itself in a vibration in the steering” and “also expert testimony that this vibration could cause a metal failure or loosening of bolts which could occur in a steering mechanism”.5
I turn now to the critical question of whether the evidence negating other probable causes was sufficient to warrant the instructions offered and refused by the court. First, it is clear that throughout the trial plaintiffs directed their evidence toward proving the existence of a specific *410defect — a broken tie rod connecting sleeve — as the exclusive cause of the accident.6 Plaintiffs did not attempt to show that the accident was caused by some unspecified defect and that no other cause was likely. (Lindsay v. McDonnell, supra).7 Nor was there evidence raising a reasonable inference that a defect in the product’s manufacture must have been a proximate cause of the accident (Franks v. National Dairy Products Corp., supra). Nor did plaintiff’s evidence negate all reasonable causes, except manufacturing defect (Greco v. Bucciconi Engineering Company, supra), or show that the defendant “was responsible for all reasonable probable causes to which the accident could be attributed” (Prosser). In sum, the evidence did not raise a “real and substantial” issue with respect to proving an unspecified defect by negating other causes. Without such evidence the proffered instructions were properly refused. See Smith v. Mill Creek Court, Inc., 457 F.2d 589, 592 (10 Cir. 1972).
It is true that Stewart had owned the car only 12 days and that it had been driven only 1400 miles. There was no evidence, however, that any trouble had been experienced in operating the vehicle during that period, as there was in Bollmeier v. Ford Motor Company, supra, and other cases holding that other causes of an accident were negated. This evidence in itself would not permit an inference that an unspecified defect was the proximate cause of the accident. If any inference may be drawn, it would be equally, if not more, probable that the accident was due to the driver’s inattention or lack of familiarity with the operation of the car and his improper application of the brakes.
The car was traveling at a speed of at least 60 miles an hour when it left the highway and entered the grass median. Less than two seconds elapsed until it struck the curb or abutment. During most of that time the brakes had been applied on the wet grass which was “uprooted” and “torn from the ground, leaving slide marks”. It is reasonable to infer under these circumstances that the driver may have momentarily lost control, without having adequate time to regain the highway.
Counsel for appellant argued extensively to the jury that the accident must have been caused by the defect found by plaintiffs’ experts and that there was no other reasonable cause. In turn counsel for appellee argued that Stewart might have dozed off momentarily or that when the vehicle entered the grass median, his “left front tire could have gotten over there into that soft stuff, and, reacting like a normal person would do, not panicking, he just went in a straight line. He didn’t try to swerve, which at that speed could have been disastrous. He kept it in a straight line and then applied his brakes”.
It is true that Deer testified that through the rear window of the Thunderbird he could see the driver and other front seat passenger struggling with the steering wheel. His testimony was discredited by tests of the defendants’ expert witnesses under identical conditions. There was no testimony to dispute these tests. Plaintiffs offered no evidence of any tests which might corroborate Deer, and, as noted *411supra, the driver of the van — the only other person in the van who was awake — was not called as a witness.
I agree with the majority opinion that Rules 46 and 51 of the Federal Rules of Civil Procedure must be read together, and that as a general rule it is not necessary for a party to except or object to offered instructions if the party’s position has previously been clearly made to the court and it is plain that a further objection would be unavailing. I have some question whether the rule is applicable here.
At the conclusion of the evidence, counsel participated in an off-the-record discussion on the instructions and plaintiffs’ proposed instructions were denied. Prior to this discussion the trial judge advised counsel that it was his practice to discuss jury instructions in chambers, but to give both counsel an opportunity to make a complete record with respect to any errors in the instructions given. Following the charge to the jury, defense counsel specifically objected to the instruction on breach of implied warranty and requested a clarification. Plaintiffs’ counsel offered no objection or request for any additional instruction, although specifically asked by the court whether he had “anything else”.8 These proceedings confirm the conclusion that plaintiffs tried the case on the theory that a specified defect was the cause of the accident and made no serious effort at any time to rely upon unspecified defects, aside from submitting, but not pressing, the two instructions.
I agree with the majority opinion that it is well settled in the District of Columbia that res ipsa loquitur is a rule of evidence and not one of pleading, and also that in a proper case a plaintiff may rely on both res ipsa and proof of specific acts. It may be noted, however, that in many of the cases reaching this conclusion, the defendant has had exclusive possession and control of the instrumentality causing the injury. See, e. g., Citrola v. Eastern Airlines, Inc., 264 F.2d 815 (2 Cir. 1959), cited in the majority opinion, where all of the passengers of an airplane were killed when the plane crashed, and the court held that the plaintiffs could rely on both specific acts of negligence and res ipsa loquitur. In applying the res ipsa rule the court emphasized that the plane was in the exclusive possession and control of the defendant. This does not mean that the absence of exclusive possession and control would in all cases preclude submission of a case to a jury on both res ipsa and specific defects.9 It is a factor, however, which must be considered in determining whether the plaintiff has negated other probable causes of the accident.
In my opinion the case was properly submitted to the jury on the theory on which it was tried, and the evidence was insufficient as a matter of law to negate probable causes of the accident other than a defect in the automobile. Accordingly I would affirm the judgment.10
. It may be noted that the district court did instruct the jury that circumstantial evidence should be considered in determining whether plaintiffs had met their burden of proof.
. See also Restatement, Second, Torts, § 328D relating to Res Ipsa Loquitur, which provides that negligence of the defendant may be inferred when “(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence”; and Comment b on “Circumstantial Evidence” and Comment f on “Eliminating other responsible causes”, which reads in part: “It is still necessary to make the negligence point to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case.”
.This was a suit in admiralty brought under the Death on the High Seas Act to recover for the death of a Navy pilot whose jet aircraft manufactured by the defendant crashed because of an alleged design or manufacturing defect.
. This case contains a careful analysis of Section 402A of Restatement, Second, Torts relating to “Strict Liability” and recognizes that a defendant may be liable under this doctrine even in the absence of negligence.
. Stewart v. Budget Rent-A-Car Corporation, 52 Haw. 71, 470 P.2d 240 (1970) is also distinguishable, as indicated by the following excerpt from the court’s syllabus:
“2. In a tort action by the driver of an automobile involved in an accident, where there is no eye witness to the accident other than the driver who testified that the car became uncontrollable and where the only expert who testified was unable to form an opinion because of the damaged condition of the car and the subsequent changes in the car’s condition, a directed verdict against the plaintiff is not justified as a matter of law.”
The court concluded that the testimony of the driver tended to negate any causation not attributable to the defendants.
. The record indicates that in the pre-trial proceedings before the first trial judge assigned to the case, the appellants indicated their wish to rely on both proof of a specific defect and causation by some unspecified defect. Following those pre-trial proceedings three mistrials resulted and the case was assigned to a second judge. Throughout the three mistrials and the fourth trial the plaintiffs made no attempt to present evidence on their unascertainable defect theory nor did they mention this theory to the court.
. Plaintiffs’ trial brief stated that their experts would “testify that the front end of the 1970 Ford Thunderbird was delivered to their laboratory for examination, and after having conducted an exhaustive examination, reached the conclusion that the cause of the incident was a dislocated or cracked thread of the left adjusting sleeve in the steering control area, creating a point of incipient failure, their opinion that the proximate cause of the accident was failure of the sleeve resulting in lack of control of the left wheel, the vehicle pulling to the left. . The experts will testify that these tests established that the failure in the Thunderbird was caused by fatigue and no other type of force.”
.When defense counsel made his objection, the court said: “Well, I sent it out to you, you know, I gave it just as we had agreed on it in chambers and I sent you copies before you ever started arguing this afternoon just for that reason. But I am perfectly willing, it it is more accurate.” After agreeing to the clarification requested by defense counsel, the court asked plaintiffs’ counsel if he had “anything else”. Counsel replied that he was concerned only with what would be done with respect to damage if the jury returned a verdict in favor of the plaintiffs.
. See Prosser, Law of Torts, § 39, pp. 219-221.
. In view of the fact that the case will be remanded for a new trial, it is unnecessary to discuss the other specifications of error. In my opinion none of them would require a reversal.