dissenting.
The controlling issue in this case is whether the trial court erred in refusing to instruct the jury that a specific defect need not be proven and in giving the jury question no. 1 in the special verdict form.1 To my mind, the combination of these two factors constitutes reversible error.
In Farmer v. International Harvester Co., 97 Idaho 742, 553 P.2d 1306 (1976), this Court held “that a plaintiff need not prove a specific defect to carry his burden of proof.” Id at 747, 553 P.2d at 1311. The Court further stated:
“A prima facie case may be proved by direct or circumstantial evidence of a malfunction of the product and the absence of evidence of abnormal use and the absence of evidence of reasonable secondary causes which would eliminate liability of the defendant. . . .
Testimony of the user or operator of the product as to the circumstances of the event is sufficient to establish malfunction. . . .
In summary the evidence need only be such that it can be said:
“ ‘The product itself must be of a type permitting the jury, after weighing all the evidence * * * to infer that in the normal course of human experience an injury would not have occurred at this point in the product’s life span had there not been a defect attributable to the manufacturer.’ Scanlon v. General Motors Corp., supra [65 N.J. 582] 326 A.2d [673] at 679.” 97 Idaho at 747-49, 553 P.2d at 1311-13 (emphasis added).
Under the rule in Farmer, a plaintiff need only show that the accident would not have occurred had there not been a defect attributable to the manufacturer. The plaintiff need not show what the defect was; he need only relate the events of the accident, and this can provide sufficient circumstantial evidence so that the jury is then free to believe that the accident would not have occurred had there been no defect.
In the present case, however, the trial court imposed on Nobles the burden of proving that the throttle stuck. Throttle is defined in Funk & Wagnall’s New Standard Dictionary of the English Language (1935) as “a valve in the supply-pipe of an engine *376for controlling the flow of the working-fluid: usually operated by hand-wheel or lever.” I cannot agree that requiring Nobles to prove the throttle stuck is in conformity with the holding in Farmer. Nobles’ evidence at trial was that he could not stop the truck because the engine was racing uncontrolled which he also expressed in terms of the throttle being stuck. Nobles, a truck driver, felt the engine was racing uncontrolled because the throttle was stuck. Nobles further attempted to demonstrate why the engine was racing uncontrolled, contending that the throttle was stuck, and that it was stuck because of a warranty seal impeding closure of the fuel pump throttle and the absence of direct linkage between the fuel pump and the accelerator pedal. For Nobles to prevail it was not necessary that the jury agree with Nobles’ theories as to the cause of the throttle sticking; nor did the jury have to agree and find that the stuck throttle caused the runaway engine. Nobles was merely attempting to show that the specific defect was a stuck throttle, and even more specifically, why the throttle was stuck. The proper jury question, however, was not whether the throttle was stuck, but whether the accident “ ‘would not have occurred at this point in the product’s life span had there not been a defect attributable to the manufacturer.’ ” 97 Idaho at 749, 553 P.2d at 1313.
A similar question arose in Moraca v. Ford Motor Co., 132 N.J.Super. 117, 332 A.2d 607 (1974) aff’d, 66 N.J. 454, 336 A.2d 599 (1975). In that case, plaintiff requested that the court give the following instructions:
“Nor is the plaintiff required to establish the specific defect that existed in the product. Rather, in order to recover for breach of warranty, the plaintiff must present evidence from which it is reasonable to infer or conclude that more probably than not, the harmful event ensued from some defect in the product, whether the defect is identifiable or not, and that the defect arose out of the design or manufacture of the product or while it was in the control of the defendant, and that the defective product proximately caused injury or damage to the plaintiff.
“A breach of warranty may be established where the total effect of the circumstances shown from purchase to accident is adequate to raise an inference that the product was defective and that such condition was causally related to the mishap that occurred.” 332 A.2d at 610.
The court refused to give these instructions, stating that they were included in the main charge. The case was submitted to the jury on the basis of four special interrogatories, the pertinent one of which read as follows:
“1. Do you find any defect in the automobile operated by plaintiff making it unfit for its intended use, which was a proximate cause of the circumstances resulting in plaintiff’s injuries?
If your answer is ‘NO’ to question # 1, you need not answer question # 2. If your answer is ‘YES’ then answer question # 2.” Id.
The appeals court, after noting that plaintiff did not have to prove a specific defect or design, held that the trial court erred in not giving the requested instructions:
“Defendants’ contention that the charge as given was sufficiently broad and included ‘a fundamental equivalent’ to the requested charge on circumstantial evidence is without merit. Although the judge, in his charge and in interrogatory # 1, referred several times to ‘any defect’ or to a defect generally, he also made several specific references to plaintiff’s ‘contended’ for or ‘claimed’ defect. Upon a reading of the entire charge, we can only conclude that the issue of liability was submitted to the jury predicated solely upon the specific defects asserted by plaintiff’s experts. This conclusion finds clear support in the colloquy between the Court and plaintiff’s counsel, at the time the latter objected to the failure to charge his two requests. The judge noted that he came ‘away from this whole trial with the feeling that the plaintiff apparently pinpointed the two possible causes for the car’s failure at this given point.’ He further added that the case was not tried on any theory that *377‘there must have been some other reason which caused the car to do it, which we can’t explain at all. This would be introducing something entirely new in the theory of the case.’
“Upon the totality of the existing circumstances, we hold that the trial court’s failure to charge plaintiff’s two requests deprived him of a substantial right, thus mandating a reversal and a new trial as to liability against both defendants.” 332 A.2d at 611.
See also Stewart v. Ford Motor Co., 553 F.2d 130 (D.C.Cir.1977) aff’d 471 F.2d 733 (3rd Cir. 1973); Dennis v. Ford Motor Co., 332 F.Supp. 901 (W.D.Pa.1971). In the present case, although the instructions did not refer to a specific defect, the special verdict form required the jury to find that the throttle stuck, as opposed to finding “any defect.” I find this case to be indistinguishable from Moraca — in both cases the jury was not clearly informed that they need only find that the accident more probably than not resulted “from some defect in the product.”
Three basic arguments have been advanced as to why the trial court’s actions in the present case were not error: (1) that Nobles himself at trial treated the “stuck throttle” as a semantic equivalent to “general defect;” (2) that Nobles had to show some defect, and since he did not show the throttle was stuck he failed to show any defect; and (3) that the “stuck throttle” is in reality a general defect.
As to the argument that Nobles treated “stuck throttle” as the equivalent to “general defect” throughout the trial, Nobles has maintained throughout that he need only prove that the product, the truck, was defective.
In response to a motion to dismiss, Nobles’ counsel first argued that he need only “show that a happening occurred that could be attributable to a defect . . . . ” When the court kept inquiring about what “defects” Nobles was talking about, Nobles’ counsel finally argued that Nobles’ testimony that the throttle stuck is sufficient to trigger strict liability in tort. By so arguing in opposition to a motion to dismiss Nobles should not be visited with thereby having conceded that a stuck throttle was a general defect. Rather his argument was simply an effort to accept the trial court’s different view of the issue and fall within it.
As to the second argument, Nobles was not required to prove a specific defect, such as a stuck throttle. All that is required of a plaintiff is that his testimony, if believed by the jury, establish circumstances such that it could be inferred that in the normal course of human experience the accident “ ‘would not have occurred at this point in the product’s life span had there not been a defect attributable to the manufacturer.’ ” Farmer, supra at 749, 553 P.2d at 1313.
Finally, as to the third argument that a stuck throttle is a general defect, this misconceives the issue. The difference between a specific and a general defect is not whether the defect can be broken down into subdefects. For example, if the steering wheel malfunctions because the linkage breaks, and that break is caused by a defective bolt, it does not follow that the linkage is the general defect and the broken bolt is the specific defect. This distinction was illustrated in the colloquy between counsel and the trial court:
“Mr. Schroeder: . .. [I]t is not necessary under Idaho law or any law adopting 402A, the doctrine of strict products liability, for the Plaintiff to show a specific defect. It is only necessary to show that a happening occurred that could be attributable to a defect; and we submit—
“THE COURT: What defects are you talking about?
“Mr. Schroeder: A defect, we don’t have to prove a specific defect. A stuck throttle, why the throttle stuck is not something we have to prove%y(4)(27
“THE COURT: What is the defect in the truck you are talking about? You have got to prove a defect in the truck.” (Emphasis added.)
*378The point is that plaintiff does not have to prove a particular defect in the truck. All he need do is show from the circumstances of the accident that the accident “ ‘would not have occurred at this point in the product’s life span had there not been a defect attributable to the manufacturer.’ ” Farmer, supra at 749, 553 P.2d at 1313.
Nobles submitted sufficient evidence to make out a prima facie case of a defect in the truck by simply testifying that the power of the engine was so great that he could not stop the truck. That was all he had to testify to to make out his prima facie case. That he may have described a racing engine as a stuck throttle does not mean that the juiy has to agree on this description for him to prevail. Nor do his further attempts to show that the reason the engine was unrestrained was because the throttle stuck, and to explain why the throttle stuck, mean that he had to prove that the throttle stuck in order to have the jury pass upon his claim that the truck was defective. Without such proof the plaintiff may well anticipate that his adversary will ask that the jury give little credence to his claim, but nonetheless he is entitled to have the jury pass on his claim under an instruction which properly presents his theory — assuming its legal tenability, which Farmer here removes from doubt.
To my mind both the trial court and this Court misconstrue the nature of the holding in Farmer v. International Harvester Co., supra. Plaintiff requested the following instruction, which instruction set forth the law as was set forth in Farmer:
“To prove a defective condition it is not necessary to prove a specific defect. Nor is it necessary to prove a defective condition by direct evidence; it may also be proved by circumstantial evidence from which you, weighing all of the evidence, do infer that in the normal course of human experience an injury would not occur at this point in the product’s life span had there not been a defect in the product at the time of its sale to the user.” (Emphasis added.)
This was a correct statement of the law. Nowhere did the trial court instruct the jury to this effect. The effect of question no. 1 of the special verdict form, then, could only be to give the jury the impression that plaintiff absolutely had to prove that the throttle stuck in order to recover. Such is not the law in Idaho as I read Farmer.
I respectfully dissent.
. The question was:
“Do you find from a preponderance of the evidence that the throttle in the Nobles truck stuck prior to the impact with the Garrett vehicle?”
Plaintiffs refused requested instruction read:
“To prove a defective condition it is not necessary to prove a specific defect. Nor is it necessary to prove a defective condition by direct evidence; it may also be proved by circumstantial evidence from which you, weighing all of the evidence, do infer that in the normal course of human experience an injury would not occur at this point in the product’s life span had there not been a defect in the product at the time of its sale to the user.” Record, vol. 7, at 300; vol. 8 at 529.