dissenting.
I respectfully dissent.
This is a diversity case and is controlled by the law of Wyoming. The majority has determined that the case was submitted solely on the basis of negligence and that the federal courts are not called upon to decide whether the Supreme Court of Wyoming, given the opportunity, would adopt the crashworthiness doctrine announced by the Eighth Circuit in Larsen v. General Motors Corp., 391 F.2d 495 (1968).
At the trial of the liability issue the jury was instructed
A manufacturer is liable to a user or consumer of his product — first, if the product is in a defective condition, unreasonably dangerous to the user or consumer, and, second, if the defective condition existed at the time the product left the control of the manufacturer, and, third, if such defective condition was the proximate cause of the injuries to the user or consumer.
Ford Motor Company has a duty to use ordinary care in the design of a motor vehicle so as to avoid subjecting the occupants of that vehicle to an unreasonable risk of injury in the event of collision. In order for you to find that the defendant breached this duty, you must find that the unreasonable risk of injury was brought about by the defect or defects in the design of a vehicle, and you must find that such defect or defects, if any, were the proximate cause of the deaths of Mary E. Fox and Diane W. Smith.
A clearer statement of the rule in Larsen would be difficult to imagine. The jury was also instructed on common law negligence (defective design) including application of the prudent man standard, and on breach of implied warranty of fitness of the automobile for the purpose for which it was manufactured. The jury was not required to return a special verdict with findings upon each issue of fact as authorized by Rule 49(a), Fed.R.Civ.P., a practice recommended by Chief Judge Brown of the Fifth Circuit “if the Trial Court is uncertain, or the law is in a state of flux, or in a diversity case is yet unrevealed but may well soon be.”1
Under the instructions the trial court introduced concepts of ordinary negligence commingled with those of strict liability. Cf. Eshbach v. W. T. Grant’s & Co., 481 F.2d 940 (3d Cir. 1973). In effect, the jury was told that it might find Ford liable on the theory of negligent design or on the *790theory of breach of implied warranty or under the crashworthiness theory. I could agree that the case was submitted solely on the basis of negligence only by assuming that the jury simply ignored or did not hear that portion of the charge. (The written instructions were not sent to the jury room.) Having only the general verdict on the issue of liability neither the trial court nor this court can have any idea as to whether the verdict was based upon the jury’s finding that Ford failed to provide shoulder belts in the rear seat, or improperly located or insufficiently padded the backs of the front seats, or breached its implied warranty of fitness of the automobile for the purpose for which it was manufactured.
In reaching the conclusion as to what the Wyoming court would hold the majority noted that the trial court was in a superior position to predict whether Wyoming would follow Larsen or Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966).2 The rule of deference to a trial court sitting in the state whose law is in question is not absolute, and in any event I am of the opinion that the trial judge’s determination was not as to the probable holding of the Wyoming court but rather was an expression of his personal agreement with section 402A of Restatement (Second) of Torts (1971). His statement on this issue was:
I have tried to give most of your instructions, not necessarily in the form in which you have submitted them, but in substance. I might say that on the manufacturer’s liability ‘I’ve tried to hew the line that the restatement set forth. And that is not the Evans line, but I’m not convinced that the Wyoming Supreme Court has adopted Evans. In fact, I don’t think they really have, and I doubt very much in my own opinion that they ever will. I regard this as an area of basically where this court is free to choose.
As I have said, the restatement of the position seems most reasonable to me. (R. 738)
Neither he nor we are at liberty to choose at will between two conflicting theories of the law in a diversity case in which the state court has not spoken. Hardy Salt Co. v. Southern Pacific Trans. Co., 501 F.2d 1156 (10th Cir. 1974). I agree with Judge Aldisert who, in Huddell v. Levin, 537 F.2d 726, 742 (3d Cir. 1976), a second collision case, said:
The common law must accommodate changing conditions, new rights and remedies. New theories of liability, like the second collision theory, require fresh thinking on the part of courts. Whether old precepts are to be retained, or discarded, in second collision cases is a matter that must abide the fermentation of the law in the state court systems. Meanwhile, we of the federal systems are placed in the unhappy position of making predictions, and merely predictions, in these diversity cases, without authority to our conclusions and without the jural responsibilities normally vested in a court system.
The Supreme Court of Wyoming not yet having accepted or rejected the crashwor-thiness doctrine we must examine its opinions, including dicta (Hardy Salt Co. v. Southern Pacific Trans. Co., supra), in an effort to determine the choice it probably would make.
In Maxted v. Pacific Car & Foundry Co., 527 P.2d 832 (Wyo.1974), the Wyoming Supreme Court held that, plaintiff having failed to show a defect, there was no need to decide whether the doctrine of crashwor-thiness should be adopted. In its discussion the court commented on the well-estab*791lished rule that the existence or potential existence of a “safer design” is not the issue in a claim of defective design. In affirming the trial court’s refusal to give a requested instruction relying on Larsen, the court stated in a footnote that “This case [Larsen ] has not been immune from sharp criticism and judicial disagreement.” At another point in mentioning the attempt of appellant to have the court “articulate and recognize certain general propositions in connection with product liability cases in this State”, it was stated that recognition would be “particularly inappropriate because of the fact that these are not directly posed nor completely argued and a careless or misunderstood word or phrase might inhibit the orderly and proper growth in this field of the law, which is dynamic and expanding.”
It is my view that these observations by the Wyoming Supreme Court evidence a very cautious and conservative approach to expansion of the law in the area of product liability. The court’s comment that Larsen has been the object of sharp judicial criticism is a telling remark, for Larsen is the forerunner in this new trend in the law. Further, the court refers to Frericks v. General Motors Corp., 20 Md.App. 518, 317 A.2d 494 (1974), as analyzing the criticism of Larsen. In Frericks the Maryland court carefully examined the underlying rationale of the approaches taken in Evans and Larsen, ultimately adopting Evans and held that the extension of manufacturers’ liability, as promulgated by the Larsen line of cases, was best left to the legislature stating:
We find the basic assumption of Larsen was that liability should be co-extensive with foreseeability and regard that assumption as totally fallacious,
and
If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined.
The reference to Frericks by the Wyoming Supreme Court, together with its own comment that Larsen has been subjected to “sharp criticism and judicial disagreement” evidences a measure of dissatisfaction with the rationale of Larsen.
I would hold that it was error for the trial court to instruct that Ford would be liable to the decedents under the crashwor-thiness doctrine announced by Larsen.
On the issue of damages, unlike the majority, I would follow the decision of the Third Circuit in Huddell v. Levin, supra. See also Larsen v. General Motors Corp., supra, at 503 and Foland, Enhanced Injury: Problems of Proof in “Second Collision” and “Crashworthy” Cases, 16 Washburn L.J. 600 (1977).
In discussing with counsel the instructions he proposed to give at the separate trial on the issue of damages the trial judge originally expressed his intention to charge the jury that
Any manufacturer defect which did not cause the accident would not subject the defendant, Ford Motor Company, to liability for the entire damage,
but before giving his instructions stated
After further reading of the Larson [sic] case it’s my conclusion that to give the instruction as to the apportionment of damages between the defective design and the collision, in view of the bifurcation of this trial, would be unfair. For that reason I will not give that instruction.
Counsel for Ford had insisted strenuously that the jury should be told that Ford would be liable only for that portion of the damage or injury caused by the defective design over and above the injury attributable to the initial impact. Ford did not object to the instruction after the instructions were given and before the jury retired. Under Rule 51, Fed.R.Civ.P., the giving of the instruction on damages may not now be assigned as error unless plain error is demonstrated. Here, where the issue of enhanced damages had been argued extensively, I would hold that it was plain error, the Supreme Court of Wyoming not having expressed its view, to tell the jury that its verdict should
*792. be for a single sum representing the total or aggregate loss suffered by all the survivors of Mary E. Fox, and for a single sum representing the total or aggregate loss suffered by all of the survivors of the decedent, Diane W. Smith.
Huddell v. Levin, supra, and see Larsen v. General Motors Corp., supra, at 503 and Foland, Enhanced Injury: Problems of Proof in “Second Collision” and “Crashwor-thy” Cases, 16 Washburn L.J. 600 (1977).
I would reverse and remand for new trial on the issues of liability and damages.
. “Federal Special Verdicts: The Doubt Eliminator”. Paper delivered at the 10th Judicial Circuit Conference 1967. 44 F.R.D. 245, 338. 1 realize that Rule 49(a) permits but does not require the use of a special verdict and do not suggest that it was error to fail to require the jury to make special findings.
. Evans has been overruled by the 7th Circuit. Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977), “In favor of a rule we believe the Indiana Supreme Court would adopt if faced with this case.” The 7th Circuit (with three judges on the issue of rehearing favoring certification of the question of state law to the Supreme Court of Indiana) noted that since its decision in Evans the Indiana Court of Appeals had adopted section 402A of the Restatement (Second) of Torts and expressed the belief that that state’s Supreme Court would follow the trend in other jurisdictions toward expanded protection of consumers in products liability cases.