(dissenting).
I respectfully dissent.
The opinion of the court decides that General Motors’ duty was, as it concedes, to design its automobile to be reasonably fit for the purpose for which it is made, and free from hidden defects; that notwithstanding General Motors’ foreseeability of possible broadside collisions, the “intended purpose” of the automobile does not include its participation in such collisions; that imposition of any requirements that automobiles be made “more” safe for collisions is a legislative function; and that the district *826court properly dismissed the complaint for failure to state a claim upon which relief could be granted.
The question before us is whether, assuming the truth of the well-pleaded allegations in the amended complaint, “it appears beyond all doubt” that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The amended complaint was in three counts, charging: negligence in design and testing of the 1961 Chevrolet; breach of the implied warranties of merchantability and fitness for the purpose of its manufacture; and strict liability of the manufacturer for a defective and dangerous automobile.
This is a diversity case; consequently Indiana law controls. No Indiana case has precisely decided the issue before us. But a United States District Court in Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.1965), and this court in Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir. 1965), as “Indiana courts” in diversity cases, participated in developing Indiana law in breach of warranty and products liability cases to meet changing conditions. In Greeno the court drew upon “available data” and cases from other jurisdictions for the statement of the rule eliminating the requirement of privity in product liability cases. In Dagley, 344 F.2d at 253, an action for breach of implied warranty, this court observed that the “historical concept of warranty,” which required privity of contract, was “outdated in view of the changing policies involved * * * and * * that the interests of society are best served by eliminating the requirement * * This court took this step as a sequel to its prior decision in Elliott v. General Motors Corporation, 296 F.2d 125 (7 Cir., 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962), eliminating the essential of privity in Indiana negligence actions, and that of J. I. Case Co. v. Sandefur, Inc., 197 N.E.2d 519 (1964), in which the Indiana Supreme Court did likewise.
The court in Greeno aptly stated, “The direction of the law is clear.” 237 F. Supp. at 432. The direction, in my opinion, leads to greater responsibility of manufacturers in designing, testing and manufacturing products, with a purpose of giving reasonable protection against harm to purchasers in the use of the products for their intended purposes. My view is that the Indiana courts would have the same opinion today on the same issue as that before us.
It is a matter of common knowledge that state and federal authorities, nongovernmental agencies, and legal and medical groups, as well as automotive producers, are currently engaged in research, discussion and hearings inspired by the appalling annual predictable rate of deaths, now more than 45,000 per year,1 and reported injuries in the hundreds of thousands, from accidents in automobile traffic. It is in the context of traffic realities that the issue before us, it seems to me, must be decided.
The opinion of the court does not state affirmatively what General Motors’ duty is. It rejects plaintiff’s theory that General Motors, foreseeing the possibility of broadside collisions, had the duty to include side rails in design of the Chevrolet frame, so as to provide reasonable protection against death or injury from broadside collisions; and it inferentially accepts General Motors’ theory that its duty was to design its automobile to be reasonably fit for the purpose for which it was made, without hidden defects rendering it dangerous to persons using it for its proper purpose, and that that purpose, as a matter of law, cannot contem*827plate that automobile’s participation in a collision.
In my view, General Motors’ duty was to use such care in designing its automobiles that reasonable protection is given purchasers against death and injury from accidents which are expected and foreseeable yet unavoidable by the purchaser despite careful use. See Restatement (Second), Torts § 395, especially comments 3 and k to this section, and § 398 (1965).
It follows that if plaintiff is able to prove that General Motors violated that duty in failing to include side frame rails in its design, and also proves the other elements entitling her to relief under any of the three counts, she would be entitled to recover unless General Motors can establish a defense to her claims. In any event, it is, in my view, error — once General Motors’ duty is recognized — to dismiss this complaint for failure to state a claim upon which relief can be granted. The trier of fact in each case, where prima facie showing is made, must decide whether the design protection is reasonable, depending on the character of the car involved and other relevant considerations.2
The court’s opinion notes that in the cases cited by plaintiff the actionable defect itself caused the injury. However, in Carpini v. Pittsburgh and Weirton Bus Co., 216 F.2d 404 (3rd Cir. 1954), an extraneous object cooperated with the faulty design of the petcock to cause the harm, and General Motors, a defendant there, did not dispute its duty of care to the user. And in Ford Motor Co. v. Zahn, 265 F.2d 729 (8th Cir. 1959), the Eighth Circuit Court of Appeals rejected Ford’s contention that it was not bound to foresee that another car would “suddenly dart” out of a side road in front of the Ford causing application of the brakes, which then propelled the plaintiff-passenger onto a defective ashtray, injuring his eye. Ford there conceded there was a duty of reasonable care in design and manufacture of its product.3
*828I recognize that safety standards for automobiles would normally be a legislative matter. The United States Senate is now considering the question of federal standards. The General Services Administration has itself set up standards for automobiles it will purchase. There is currently an abundance of books and magazine and newspaper articles, condemning, as well as defending, the record of manufacturers of automobiles in safety design and production. The particular issue before us is merely a reflection of the broad national issue being debated at this time. But the possibility of future adequate legislative standards does not remove the necessity of presently deciding whether plaintiff should or should not have an opportunity to prove the allegations made in the complaint.
I would reverse the judgment in favor of General Motors on its affirmative defenses to Counts I and II, and on its motion to dismiss Count III; and would remand for further proceedings.
. A special report of The Defense Research Institute, Inc., entitled “The Injury Industry and the Daw Explosion,” p. 1 (Oct., 1965), reported “some 2.8 million traffic injuries and some 48,000 accidental deaths each year.” See also Katz, Negligence in Design, 1965 Ins. D.J. 5, 11 (Jan., 1965); Time Essay, “Why Cars Must — and Can — Be Made Safer,” Time, Apr. 1, 1966, p. 26.
. The New York Times, March 8, 1966, p. 36M, concluded its editorial “Safety Gets Into Gear,” commenting on the recent Senate hearings on automotive safety, with this paragraph:
The central issue is the “crash-worthiness” of an automobile. Since there are bound to be accidents, no one expects a crash-proof car. But cars can he designed to minimize the effects on the passengers once the collision has occurred. It is old-fashioned to think that such a car would have to look or drive like a Sherman tank. Safety and style need not be enemies.
. General Motors has argued here that it owed no duty to plaintiff to utilize, in its design of the automobile, a frame which plaintiff alleges would have provided more protection to the driver than the X-frame which General Motors used, even though it is alleged that this manufacturer knew or should have known this fact. The evident basis for this is that the automobile is intended for travel, not colliding with other vehicles or things. Although no collision was involved in Ford Motor Oo. v. Zahn, the action of the driver in applying the brakes to avoid another ear caused plaintiff to be injured by the defectively designed and manufactured ashtray. This prompted Ford to
argue that “a reasonably prudent person was not required to anticipate or foresee the unusual occurrence and resulting injury to plaintiff,” to which the Eighth Circuit responded, in part, 265 F. 2d at 732:
While the risk of danger was perhaps not as great as that which might inhere in a defective wheel or a defective steering mechanism, nevertheless, the fact remains that plaintiff did suffer a serious injury, and the jury could properly consider as a circumstance that in this era of fast moving automobiles, emergencies arise frequently which require the sudden application of brakes which in turn throw the occupants of the automobile forward and against the dashboard. The records reveal that defendant was fully conscious of the necessity of guarding against injuries resulting from such occurrences.
While the possible negligence of the plaintiff’s decedent, or the driver of the other car, may present an issue of causation, this should not eliminate from the case the duty of the automotive manufacturer.
It is also of interest to note that not only did a rival manufacturer of General Motors assert, in words and in the reprint produced in the majority opinion, *828the alleged superiority of a perimeter-type frame over the “weak in the middle” X-frame, hut an advertisement for the 1959 Oldsmobile reproduced in plaintiff’s brief features the “all-new Guard-Beam Frame-” in these words: “It combines heavy U-chamiel and box-member side rails with a huge center X-member. * * * Solid steel side rails provide added protection against impacts on the body sides.”