(dissenting) :
I dissent because I believe the district court erred in withdrawing the case from the jury. Under Virginia law, the manufacture of a product, which— though not dangerous in itself — becomes dangerous when it is used in its customary or ordinary manner, owes a duty of reasonable care to any person who might foreseeably be injured because of the product’s negligent design or manufacture. Olds v. Wood, 196 Va. 960, 86 S. *376E.2d 32, 34 (1955) (dictum); Restatement (2d) of Torts §§ 388, 395, 398 (1965). While it may be said that Kranco’s crane was not inherently dangerous, it cannot be doubted that it became dangerous when it silently bore down on Spangler as he performed his assigned task in its path. Customer specifications do not insulate a manufacturer from liability to third persons who might foreseeably be injured by negligent design or fabrication, although the specifications might offer the manufacturer a defense in an action brought by the customer. Cf. Wirth v. Clark Equipment Co., 457 F.2d 1262, 1267 (9th Cir. 1972), cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972)1 Here there is no suggestion that Spangler acquiesced in the specifications Reynolds furnished Kranco.2 Nor does Kranco’s alleged compliance with industry standards or safety legislation, even if proved, place the question of its exercise of due care beyond inquiry of the jury. Texas & P. Ry. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903); Bly v. Southern Ry., 183 Va. 162, 31 S.E.2d 564, 569 (1944).
When reasonable men can draw competing inferences of negligence from the evidence, the seventh amendment requires that the issues be submitted to the jury. Moore v. Guthrie Hospital, Inc., 403 F.2d 366, 367 (4th Cir. 1968). From the following proffer of evidence and from the following testimony admitted at the trial, I believe that reasonable men could differ over the issue of whether Kranco negligently designed and manufactured the crane with knowledge that the crane might foreseeably injure third persons when used in the customary manner:
|f The excluded opinion testimony proffered by Spangler’s expert witness that warning devices should have been installed on the Kranco crane in the circumstances under which it was in use at the time of Spangler’s injury and that a reasonably prudent manufacturer would have installed one.
If The expert’s estimate that installing a warning bell on the Kranco crane would cost about $50, an insignificant amount compared with the $35,000 cost of the crane.
|f The testimony of Kranco’s employee that he told two Reynolds employees a warning device was needed on this crane because of the type of load it carried.
If The testimony of Kranco’s president that Kranco omits warning bells not called for in customer specifications even if the company knows that using the crane without a bell is hazardous, unless the specifications violate the National Safety Code or the Occupational Health and Safety Act.
I would reach a similar result if the action were based on breach of warranty because Virginia has abolished the need for privity. Va.Code Ann. § 8.2-318 (1965); Cf. Chestnut v. Ford Motor Co., 445 F.2d 967, 968 (4th Cir. 1971).
. Cases upon which Kranco relies do not conflict with this principle. In Greater Richmond Civic Recreation, Inc. v. A. H. Ewing’s Sons, Inc., 200 Va. 593, 106 S.E.2d 595 (1959), the contractor was permitted to assert the defense that it had complied with the owner’s specifications in an action brought by the owner, not by a third party. In Littlehale v. E. I. du Pont de Nemours & Co., 268 F.Supp. 791 (S.D.N.Y.1966), aff’d 380 F.2d 274 (2d Cir. 1967), the plaintiff abandoned his claim of negligent design and manufacture, and the evidence negated any need to warn of the dangers associated with the use of the defendant’s product. In Davis v. Henderlong Lumber Co., 221 F.Supp. 129 (N.D.Ind. 1963), the evidence failed to show that a contractor who followed an architect’s plans and specifications knew, or should have known, of the danger involved.
. Although Spangler was a statutory employee of Reynolds within the meaning of the Compensation Act, Virginia law permits this action against Kranco. Va. Code Ann. §§ 65.1-41, -42 (1973). See Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575, 580 (1951).