(dissenting):
I would affirm the judgment because I think the record offers more than enough evidence to support the jury’s finding of breach of warranty by the defendant. At the very least I agree with the trial judge that the plaintiff is entitled on this record to have his claim of negligence submitted to a jury.
The majority is guilty of several errors which distort its analysis of the case. First, the conclusion that the statements contained in the manuals were not warranties because they did not tend to induce a sale. It is not' necessary that a statement be a definite and crucial reason for the sale but only that it be one of a package of attributes which the buyer is seeking. Certainly a careful purchaser, knowing that his employees will be working on the machinery at night under adverse light conditions, is concerned with the safety devices built into the equipment. In any event I think that this court exceeds its authority in finding as a matter of law that the statements do not constitute a warranty in this type of case where the suit is in tort under the Ohio law of strict tort liability. Under the factual context of this case I think the matter would have been more properly left to the jury.
Second, the majority argues that the manuals adequately warned against “starting” the machine, but this overlooks the very heart of the plaintiff’s case. The plaintiff was not attempting to “start” the machine — that was the very thing he did not want to do. He was merely attempting to “bump” the starter in the usual and customary manner in order to turn up the grease cup on the drive shaft. The majority lays much stress on their conclusion that there was no “latent” defect in the machine. But the fallacy of this argument is that it equates latent defect with design defect and ignores the very essence of the plaintiff’s case, which is that the latent defect consisted in removing the micro switch, a safety device on which its users were accustomed to depend, and substituting therefor the shield.
It is generally accepted law that when one undertakes to provide for the safety of another when he knows that the other will rely on this undertaking he must take care in termination of that assistance. “ * * * the actor is not free to discontinue his services where a reasonable man would not do so. He will then be required to exercise reasonable care to terminate his services in such a manner that there is no unreasonable risk of harm to the other, or to continue them until they can be so terminated.” Restatement 2d, Torts § 323 comment c. This holds true whether or not there is any duty to provide for the other’s safety. In a similar situation the Ohio court said:
“The rule generally recognized is that, notwithstanding that a railroad is under no duty to maintain a flagman at a particular crossing, if it has customarily provided one to warn of the approach of all trains to that crossing, then, at least so *822far as persons who know of that customary practice are concerned, the failure of a watchman to warn of an approaching train may constitute negligence, even in an instance where the approach of such train would not ordinarily involve an unusual hazard to an approaching automobile.” Tanzi v. New York Central R. Co., 155 Ohio St. 149, 98 N.E.2d 39, 24 A.L.R.2d 1151, 1158 (1951).
No warning was given of the hazard left by the replacement of the micro-switch by the mechanical block. The general warning statements relied upon by the majority were contained in the previous manuals for the models with micro-switches. Certainly their verbatim continuance cannot give warning of a new hazard to one already familiar with the machines. At the one place where a new statement was added it stated the function of the mechanical block as identical to that of the micro-switch, in fact, it merely inserted the words “or mechanical block” after the words “micro-switch.” 1 This gives no adequate indication of a new hazard. A mechanical block, to the average reader, could have served the function of the micro-switch of making the starter circuit inoperative. We think the majority usurped the function of the jury when it concluded that the shield was, to the ordinary observer, an obvious substitute for the micro-switch which was removed without warning. A jury could conclude that the shield was apparently there to prevent the operator from accidentally hitting, the starter button while the machine was in motion and was therefore an additional “safety” feature to the micro-switch. There is nothing in the record to justify the notion that a user would, upon seeing the shield instantly deduce therefrom that the micro-switch had been withdrawn. Finally, it may be quite true that a manufacturer is not required to use the most modern or expensive safety devices, but once having accustomed his users to a particular device we submit a jury could find negligence in the withdrawal of that device without adequate warning, and it is immaterial that another more or less efficient device is substituted. Even the defendant did not contend that the shield was a more efficient device but merely that it was “more rugged.” Cheaper would be a better description.
The majority concedes the manufacturer’s liability to the user of its machine for negligence, citing the Restatement of the Law of Torts 2d § 388. This section makes the manufacturer liable for injury in its normal use if (a) the danger is foreseeable and (b) not apparent to the user and (c) he fails to warn. We pass over the argument that a 20 ton hydromatic tractor crawler which will start in gear is not a chattel known to be dangerous when employed for its intended use. The universality of the micro switch and similar devices to prevent machines from being unintentionally started in gear is adequate evidence of their dangerous propensities. In any event the question was for the jury. There was evidence that the danger was foreseeable by the manufacturer, as the defendant’s own witnesses testified they knew of the manner of greasing used by the plaintiff and they warned their own dealers of the change, presumably because they thought it not apparent.
Before turning to the law of Ohio relating to warranties let me point up certain aspects of the facts of this case which will be relevant to the application of that law. While the evidence showed that it was possible to lubricate the universal joints upon which the plaintiff Brown was working by removing four bolts and lifting up the floor boards *823of the machine, all the evidence showed that it was customary and was the practice to perform this service by sitting on the tracks as the plaintiff was doing when injured. Mr. Faggart, an experienced employee of the Euclid distributor which sold the machine, testified that this was the normal practice. He also conceded that although the defendant’s maintenance manuals recommended frequent greasing of these joints, they did not suggest any specific position from which they could be reached. The evidence also showed that the machine was functioning normally at the time of the accident and that it was possible to start the machine in gear by pressing on the starter button with the thumb or forefinger when the machine was in first gear. The built-in slippage of the automatic transmission made it possible for the engine to be started in gear; the diesel engine was highly responsive, especially when the engine was hot. The tractor weighed 40,000 pounds and stood half again as high as a man’s head.
In Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962), cited by the Ohio court in Lonzrick v. Republic Steel Corporation, 1 Ohio App.2d 374, 205 N.E.2d 92, the plaintiff was injured by a power tool purchased by his wife from the defendant. The action was on express warranties included in a brochure which accompanied the tool and which the plaintiff claimed to have read. The court, ng Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103, pointed out that the abandonment of the requirement of privity, the recognition that the liability is imposed on the manufacturer by law and the refusal to allow the manufacturer to define the scope of its own responsibility for defective products make it clear that the liability is not one governed by the law of contract warranties. The court added:
“In the present case, for example, plaintiff was able to plead and prove an express warranty only because he read and relied on the representations of the Shopsmith’s ruggedness contained in the manufacturer’s brochure. * * * Under these circumstances, it should not be controlling whether the plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the job it was built to do.”
I think the Ohio cases and those upon which the Ohio court expressly relied in enunciating its doctrine make it clear that the Ohio law of product liability goes beyond the requirement of proving negligence; it would hold the manufacturer for any injury to one who was using the product in the manner in which it was intended to be used. I think this would apply whether the injury arose out of a defect in the product, per se, or out of the manner of its distribution such as an inadequate warning of a latent danger in its normal use,2 or improper instructions as to its use. The danger must, of course, be reasonably foreseeable and the injury must be proximately caused by the default of the manufacturer.
Turning now to the case at hand, I think the court correctly charged the jury under the Ohio doctrine of strict tort liability for manufactured products that the defendant was responsible if the plaintiff's injury was proximately caused by a breach of the defendant’s express warranty that the machine would not start in gear. This is true even though the plaintiff did not have knowledge of the express warranties contained *824in the operator’s and maintenance manuals. It was for the jury to determine whether or not the plaintiff’s reliance on the absence of any warning was a proximate cause of his injury — and the express warranty was clear proof that such notice was not forthcoming from the manufacturer. Nor was this the only evidence which went to the jury on this issue, for the defendant’s service manager and safety expert3 testified that although he knew of the change in the starter and informed his dealers, he did not inform his customers and users, of which latter class the plaintiff was a member.
The fact that the machine itself may not have constituted a dangerous instrumentality in the absence of the express warranty would not in my opinion relieve the defendant. Users of its products over a long period of time were entitled to an adequate warning of any change which constituted a hidden danger to those who were accustomed to use defendant’s products, and defendant was as liable for a danger created by change without warning as for an inherent defect in the machine itself. A manufacturer who works in concert with his authorized dealer (as here where the manufacturer prepares and dealer distributes descriptive literature with the product to potential users) is as much liable for a negligent failure to warn as for an inherent defect in the machine. Cf. Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964). A fortiori, he is liable for an express misstatement of a characteristic of his product which, as here, lulls his users into danger and injury.
Mr. Morgan, Blythe’s chief mechanic, testified that he received and placed on file in his library for study the manuals distributed with this machine when he first saw the machine on the job sometime prior to the accident. Morgan, and indeed the defendant’s witness Faggart, testified that it was long standing practice to grease the tractor crawlers just as the plaintiff was doing by sitting on the tracks. It would be wholly incompatible with the concept of strict liability to hold that the plaintiff must have had personal knowledge of the defendant’s false warranty which not only would not have warned him, but would in fact have misled him. It is enough that the manufacturer could reasonably foresee that the danger existed when they changed the design of the starter not only without giving their customers and users a proper warning but by expressly misrepresenting the fact. I think this issue was correctly submitted to the jury in the judge’s charge that they must find the defendant’s breach of warranty to be the direct and proximate cause of the plaintiff’s injury.
. Original wording:
A micro switch on the range selector control lever does not permit the starter switch to operate unless the lever is in neutral.
Revised wording:
A micro switch or a mechanical block on the range selector lever does not permit the starter switch to operate unless the lever is in neutral.
. In Ross v. Phillip Morris & Co. Ltd., 328 P.2d 3 (8 Cir. 1964), cited in Lonzrick, the court held that under Missouri law the manufacturer would be liable in damages where he “did not warn of the probability of lung cancer resulting from smoking defendant’s cigarettes.” See also: Product Liability: Directions for Use and the Duty to Warn, Dillard and Hart, 41 Va.L.R. 145, and cases therein cited.
. Mi-. Knight, who was service representative for the Euclid Division of General Motors for Virginia and North Carolina, testified that in addition to his safety work he kept the dealers informed on improvements in the products and equipment, held service meetings, helped to settle claims, kept the factory informed as to Euclid performance in the field and things of that nature.