(concurring and dissenting):
I concur in the view that a directed verdict for the defendant was not mandated by the “physical facts rule”, substantially for the reasons stated by the majority. On the other hand, the tests and expert testimony introduced by Ford in its effort to show that the accident could not have been caused by a defect in the gas tank of plaintiff’s Mustang, when considered with all of the other evidence, demonstrates that the issue of liability was an extremely close one. With the scales so evenly balanced Ford, in my view, was erroneously precluded from introducing proof which might well have persuaded the jury to conclude that the plaintiff had failed to sustain his burden. This error was compounded by grossly improper and prejudicial comments by plaintiff’s counsel in his summation, some of which were approved by the trial court. The effect was to deny Ford substantial rights. I would therefore remand the case for retrial.
Plaintiff’s claim is that enough gasoline vapor to cause an explosion escaped through a pinhole in the top of the “drop-in” gas tank' of his Mustang, seeped through or around the mat on the floor of the trunk, collected on the floor of the passenger compartment, despite the fact that one of the windows was open, and erupted into flames when he attempted to use the automobile’s cigarette lighter. He admitted having drunk two or three Scotches and sodas within approximately an hour of the mishap and the records of the hospital to which he was admitted immediately after the accident recorded him as “conscious and drunk”. Despite his testimony that he threw his hands to his face when the interior of his car burst into flames and that he recalled nothing more until he woke up in the hospital, he successfully negotiated the first leg of a dangerous S-curve, then hit the second half, rebounded, and came to rest on the left divider of the 59th Street Bridge.
Plaintiff’s version of the accident was substantially corroborated by the testimony at trial of the tow truck operator, Comparato, who testified that he was driving behind him. However, Comparato had told the investigating police officer immediately after the accident that he had not witnessed it. Furthermore, although Comparato, who pulled plaintiff from the car and towed it away, testified that the car had burned only on the inside, without any flames developing on the outside of the car, photographs taken later reveal extensive burning on the outside of the automobile, ruptures on the bottom of the gasoline tank and a longitudinal crack along the left side of the tank.
After the accident the floor of the trunk of plaintiff’s car, which was also the top of the gas tank, was exposed for many months to the elements, with rust and erosion developing from accumula*972tions of water and from chemicals that had been used to extinguish the fire. One of plaintiff’s experts testified that six months after the accident he discovered a pinhole in the center of a rusted depression in the top of the tank, in which moisture collected. This condition was examined by another of plaintiff’s experts some 13 months after the accident. The tank and the purported hole were photographed. A small section containing the hole was then cut out of the tank. Plaintiff’s theory as to liability depended entirely upon the hole found in this piece of metal. His experts testified that it was caused by a defect upon manufacture, which permitted gasoline vapor to escape into the car and to explode. Despite the crucial importance of this small piece of metal it mysteriously disappeared before trial and could not be examined by defendant’s expert or by the jury to determine whether the hole had actually existed at the time of the accident or had been caused by something other than a defect, such as corrosion or a sharp blow.
Shortly before trial tests were conducted by defendant’s expert, Paul E. Toth, using a 1967 Mustang with a larger hole in the top of the tank, to determine whether gasoline vapor would enter the passenger compartment in sufficient quantities to explode. Toth testified that, assuming the existence of the hole at the time of the accident, even under test conditions designed to maximize the amount of vapor that would enter the passenger compartment, the vapor did not build up to a point where it would explode. He further testified that plaintiff would have smelled a strong and definite odor of gasoline before the build up of any such vapor. Plaintiff had testified that he had not smelled any gasoline odor before the accident.
It is against the foregoing background that we must consider some of the trial court’s rulings with respect to evidence offered by Ford. Throughout the trial it was plaintiff’s contention that Ford’s use of a “drop-in” gasoline tank in lieu of a “strap-on” model was dangerous. For example, plaintiff’s expert O’Connell, without having made any tests, testified:
“The design, the arrangement of the gasoline tank relative to the passenger compartment, it is extremely dangerous because it allows direct connection with a highly dangerous flammable fluid and this compartment and when we take into account the trough-like design of the floor of the passenger compartment to act as a trap, and to allow this flammable fluid to accumulate, then the entire arrangement is extremely dangerous. There is no question about it.”
In an effort to counter plaintiff’s contention that the tank design was unsafe, Ford's counsel at an early stage of the trial attempted to elicit testimony to the effect that a large number of Mustangs had been sold, obviously to support Ford’s contention that the sale of several million automobiles of the same design prior to the accident would tend to disprove plaintiff’s theory, since there would probably have been earlier complaints if the design of the Mustang type gasoline tank was dangerous or defective. The relevancy and admissibility of such evidence has long been recognized. See, e. g., Fletcher v. Baltimore & P. R. R., 168 U.S. 135, 141, 18 S.Ct. 35, 42 L.Ed. 411 (1897); De Salvo v. Stanley-Mark-Strand Corp., 281 N.Y. 333, 339-340, 23 N.E.2d 457 (1939); Bachmann v. Little, 152 App.Div. 811, 812-813, 137 N.Y.S. 699, 701 (1st Dept. 1912).1 For instance, after plaintiff of*973fered the testimony of Edward R. Gloyd, Assistant Chief of the Safety Office of the U. S. Army Corps of Engineers, regarding his investigation of a similar gas tank design, Ford’s counsel unsuccessfully sought to elicit the number of Ford cars purchased by the Army. Upon objection by plaintiff Ford’s counsel pointed out “If it’s an awful bad design, I doubt whether they would buy more than one,” to which plaintiff’s counsel replied, “They may be so darn cheap that they would buy them.” Sustaining the objection, the court reprimanded Ford’s counsel. In my view the ruling was erroneous and the reprimand was unjustified, since the question was relevant. See De Salvo, supra; Bachmann, supra.
Upon cross-examination of O’Connell (one of plaintiff’s experts), Ford’s counsel attempted to bring out the large number of Mustangs that had been sold in the years 1964-67, pointing out “Your Honor, when they are claiming that there was a bad defect, I should be able to give the vast number of Mustangs sold and made,” and again the court sustained an objection. At the close of the trial plaintiff’s counsel, in a turn-about, indicated that he intended to comment to the jury on the defendant’s failure to prove that despite the large number of “drop-in” gas tank installations there had been no complaints or only a limited number. Ford’s counsel objected on the ground that he had been precluded from offering such proof. Thereupon the court stated unequivocally that it considered such evidence “highly speculative” and that therefore it would not permit the proposed comment. Certainly, once Ford had been barred from eliciting evidence as to lack of complaints, it was proper for the court not to permit plaintiff’s counsel to comment on Ford’s failure to do so but I do not regard the evidence itself as “highly speculative” and I believe that Ford should have been allowed to introduce it. See e. g., De Salvo, supra; Bachmann, supra; Moore v. Board of Education, 22 A.D.2d 919, 255 N.Y.S.2d 540 (2d Dept. 1964), affd. mem., 19 N.Y.2d 621, 278 N.Y.S.2d 406, 224 N.E.2d 879 (1967).
Lastly, Ford’s counsel sought to counteract testimony of plaintiff’s experts that the Mustang tank design was dan*974gerous, by seeking to bring out through Ford’s own witness, Gilford Gorker, a Ford design engineer, that the steel incorporated in the top of the Mustang gasoline tank was thicker or heavier in gauge than that used in “strap-on” models. Once again an objection was sustained.
In my view it was error for the trial court, on the one hand, to permit the plaintiff to offer expert testimony to the effect that the design of the Mustang tank was dangerous and defective, and, on the other, to tie Ford’s hands by precluding it from offering proof as to the large number of similar tanks made without accident or claims of defect and as to the safety features incorporated in the design of the Mustang tank, including thicker steel construction and the like.
The foregoing errors were magnified by the court’s approval of repeated argument by plaintiff’s counsel in summation to the effect that Ford, by adopting the dangerous Mustang tank design testified to by plaintiff’s expert, had sacrificed safety in order “to save money.” There was no proof in the record to the effect that the flange-mounted “drop-in” tank design used in the Mustang was less expensive than the “strap-on” design used in some other models. Indeed, for all we know it may have been more expensive, since a heavier gauge of metal apparently was used in the top of the Mustang tank, its top was corrugated and it required construction of a flange-mounting. When Ford’s counsel pointed out the lack of any evidentiary basis for the statement of plaintiff’s counsel, the latter stated “It is a fair inference, your Honor,” to which the trial court responded “It is fair comment.” I disagree. I believe that the argument, to which the court thus gave its blessing, was highly improper and that it caused substantial prejudice to Ford.
Apparently emboldened by the court’s foregoing comment, plaintiff’s counsel thereupon embarked on an extensive diatribe in which he accused Ford in detail of sacrificing public safety for profit, as follows:
“Obviously if you can use one piece of metal for two uses, two purposes, you are going to save a few pennies. Maybe even a few dollars, I don’t know.
“So the consideration for Ford was not safety of the public, it was profit, A little more profit makes for happy stockholders.
“If they insisted on using this design, they still could have done something to help the situation. They could have, No. 1, put some vents in the trunk, put some vent holes in the trunk compartment so in case some gas gets into the trunk, gas vapors, they can escape out into the air and not go into the passenger compartment.
“If they didn’t want to put vent holes in, if they didn’t want to do it, they could have done one other thing, they put a fire wall in the car between the engine and the front seat, so why couldn’t they have put a fire wall between the trunk and the back seat?
“How much would it cost ?
“That is where the hazard is. The engine isn’t going to blow up, it is the gas vapor that is explosive if ignited.
“Put a fire wall back there.
“I don’t know how much it would cost, can’t cost much, put something there to prevent these vapors escaping from the trunk which get into the passenger compartment, but I guess it would cost a little bit.
-x x -x -x -x x
“I am telling you in closing only one thing.
“It is apparent to me that The Ford Motor Company is somewhat more interested in fact in profit rather than the public safety, and- I tell you this cannot continue and I think it is about time the customer had a few rights and I would like The Ford Motor Company to be a little more careful, if *975this is hazardous not to consider a profit over safety.
“And I say to you if you feel that way about this design, you let The Ford Motor Company know it and let them know—
“Mr. Conway: I think this is way, far beyond the realm of any sort of comment.
“The Court: I think you have concluded, you have concluded ?
“Mr. Peters: I have just a little more.
“If you feel that way about this design, you let them know it and you let them know it loud and clear.
“Thank you.” (App. at 689-90, 691)
Other portions of the record, while not independently sufficient to warrant a remand, confirm that a new trial here would serve the interests of justice. Of crucial importance and relevance was the small piece of metal cut out from the Mustang tank, described by plaintiff’s experts as containing a hole that in their opinion was caused by an imperfection in manufacture. Plaintiff’s failure to produce this essential item before or at trial, or to offer competent evidence explaining the failure to do so, was a highly suspicious circumstance. Without some explanation the jury might infer the worst, namely, that the evidence had been suppressed or that if produced it would have revealed that the hole had not existed at the time of the accident and that it had been caused by something other than a manufacturing defect.
Apparently sensitive to this weakness in his case, plaintiff’s counsel, without subjecting himself to cross-examination, improperly used his summation to testify that his office had inadvertently lost the piece of metal, stating:
“Take a look at the size of the piece that is missing. It is half the size of an old three-cent stamp, and that piece was sectioned in several pieces so it could be cross-photographed in a microscope.
“Do you know what we are dealing with in our office? Specks. I can’t tell you where it is, if I could I wish to God I would. I don’t know where it is. I never even — ”.
When Ford’s counsel objected the court, instead of sustaining the objection and reprimanding plaintiff’s counsel, asked him to take up another topic, whereupon plaintiff’s counsel continued:
“The court is going to charge you that if we intentionally lost that piece so as to prevent you or them from seeing it, you may draw the greatest of inference from that, and I tell you right now I want you to go further than the court charges you against me if you feel that I or anybody from my office intentionally lost that piece — ”,
The foregoing statements of plaintiff’s counsel were most improper. See Code of Professional Responsibility DR 7-106(C) (1, 3), 5-102(A), N.Y. Judiciary Law App. (McKinney’s Consol.Laws, c. 30, 1971 Supp.). Under the circumstances the court’s statement to the jury instructing its members “to disregard statements of counsel with respect to whether or not the facts they ask you to draw are facts” could not cure the serious error or obliterate its harmful effect. See, e. g., Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (concurring opinion of Justice Jackson); Koufakis v. Carvel, 425 F.2d 892, 901 (2d Cir. 1970).
The improprieties committed by plaintiff’s counsel did not stop at the foregoing. Much of his summation was devoted to unjustified, baseless and inflammatory arguments to the effect that Ford had fabricated evidence offered in its defense or had suppressed evidence that would have been harmful to its position in the case.
One last item deserves mention, Ford’s attempt to impeach the testimony of Comparato, who was a key witness not only because he was the only eye*976witness other than plaintiff but because, presumably neutral, he corroborated plaintiff’s testimony that the interior of the car suddenly erupted into flames. Comparato conceded on cross-examination that he had received a phone call from a Ford investigator. Ford’s counsel then laid a foundation for impeachment by eliciting from him denials that he had told the investigator that there was another worker with him in the tow truck when he witnessed the accident and that they saw smoke and flames coming out of the rear or bottom of the plaintiff’s Mustang before there was any fire in the interior. Since the investigator had died before trial, Ford’s counsel offered testimony of the investigator’s assistant to the effect that he overheard part of the telephone conversation. Although Ford’s counsel now contends that through this witness he would have offered the entire conversation between the investigator and Comparato, including statements by Comparato on material matters that were directly contrary to his trial testimony, no offer of proof was made and it does not appear that the trial judge could reasonably have anticipated the content of the impeaching evidence. We cannot now consider proof that should have been brought to the attention of the trial court. However, since the case in my view should be remanded on other grounds, a new trial would enable the parties to resolve the issue.
Rule 61 of the Federal Rules of Civil Procedure instructs us to “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Whether errors had such an influence on the jury in a particular case is admittedly a fine question of judgment in which precedents give little guidance, for what may be harmless in a case where the evidence .strongly favors one party may be fatally prejudicial in a close case. In this case the issue of liability and causation was exceedingly close; therefore almost any error, especially the conscious impropriety of counsel with respect to material issues, mandates a new trial, for
“The only way that the defendant can be protected against the strong possibility of harm from the improper occurrence at trial for which it was in no way responsible is by having a new trial.”
Beck v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941); see Throckmorton v. Holt, 180 U.S. 552, 567, 21 S.Ct. 474, 45 L.Ed. 663 (1901); Koufakis v. Carvel, 425 F.2d 892, 904-905 (2d Cir. 1970); Rebmann v. Canning, 390 F.2d 71 (3d Cir. 1968). In the circumstances of this case I regard the cumulative effect of the errors at trial to require that a new trial be had and therefore I respectfully dissent.
. Footnote 1 of the majority opinion states that this was “primarily” a breach of warranty case. The complaint contained a negligence cause of action as well as one for breach of warranty. The negligence claim alleged:
“That the aforesaid occurrence and injuries were caused by the negligence and carelessness of the defendants, their agents, servants and/or employees, which negligence and carelessness consisted of the following amongst other *973tilings; in negligently, carelessly and improperly manufacturing, designing, assembling, adjusting and maintaining the aforesaid motor vehicle; in permitting, allowing, causing and/or suffering the aforesaid motor vehicle to be and remain in an unsafe, improper and dangerous condition; in failing to remedy the aforesaid dangerous and unsafe condition ; in failing to make proper and adequate inspections, adjustments and repairs to the aforesaid motor vehicle; in causing and permitting the said motor vehicle to be sold to plaintiff containing a defective part or parts therein and/or part or parts which were dangerously and carelessly placed therein, and/or part or parts which were improperly manufactured, designed, assembled and adjusted to be placed therein, which were inherently dangerous with knowledge and notice that said motor vehicle would be used and driven by the plaintiff and in thereby exposing the plaintiff to a position of danger and peril in wanton disregard of plaintiff’s safety; ... in causing and permitting the negligent construction, design and assembly of said motor vehicle, particularly the gasoline tank and trunk floor portions thereof; in causing, permitting and allowing the gasoline tank of the aforesaid motor vehicle to be located underneath the floor of the trunk and/or to be a constituent part of tlie gasoline tank of the said motor vehicle; in causing and permitting the gasoline tank, forming the bottom portion or floor of the trunk, to develop a small hole so that gasoline from the motor vehicle gas tank and/or fumes therefrom was caused to leak into and become trapped inside of the trunk;
It was not until after presentation of the plaintiff’s case and denial of Ford’s motions to dismiss both causes of action that plaintiff’s counsel indicated he was “proceeding under the theory of express and implied warranties,” Even then, the negligence cause of action was never explicitly withdrawn or dismissed. Absent such positive action I believe that Ford was fully justified in attempting to show the large number of Mustangs sold and the lack of other similar complaints.