(dissenting).
A vital issue here is whether the jury acted reasonably in finding plaintiff free from contributory negligence. If we say it did act reasonably, it is difficult for this writer to imagine a case where a manufacturer would not have to respond to any *286purchaser of its commodity where the latter takes the liberty of changing' it, abusing it, remaking it and using it with unrecommended substandard parts or accessories not designed for its use, as an officious busybody aptly labeled by the main opinion as a “tinkerer,” whose tinkering plagued the case with complications because he “was not contented to use this gun * * * in its original form.” The decision here places a premium on such tinkering and upon the unorthodox use of a standard manufactured article in a manner, and with substituted foreign parts, never dreamed of, contemplated by, designed for or recommended by the manufacturer. It makes the manufacturer an absolute insurer.
It is no answer to say, as does the main opinion, that plaintiff “seeks recovery under the now well-established doctrine which imposes liability upon the manufacturer for injuries resulting from defects in such a product when it is used in accordance with its intended purpose." In support, Hooper v. General Motors, Hewitt v. General Tires and McPherson v. Buick, are cited. None is in point, since hone involved .a commodity tampered with or altered, as here, by a tinkering purchaser. The quoted statement, as applied to this case, is most inaccurate, since it ignores the facts in urging or implying that the article here was “used in accordance with its intended purpose.” The “intended purpose” in this case quite clearly was meant to contemplate a use'of the rifle in its physical state at the time it was removed from the packing case, with recommended standard ammunition, and not as remanufactured and reassembled by a ballistic eccentric.
The main opinion repeats the trite aphorism that the “plaintiff * * * is entitled to have the evidence and every reasonable inference fairly to be drawn therefrom viewed in the light most favorable to him,” to support what I believe to be an unrealistic conclusion. This easy out is no substitute for documentation of exactly why and where plaintiff acted reasonably. The opinion not only lacks such specificity, —it ignores an equally, recognized rule that plaintiff is bound by the undisputed evidence. Here is the evidence which plaintiff cannot escape:
In March, 1955, plaintiff bought a nationally advertised, name-brand Winchester Model 70, .220 rifle. He removed the standard barrel, replacing it with an abortive one of different size and caliber, made by an unknown local gunsmith, whose genius or capability is not reflected in the record. With this hybrid substitute for the standard equipment, plaintiff was fortunate, nonetheless, to survive the firing of 150 to 200 rounds. Early in 1956, plaintiff’s genius for disaffection from using the gun under normal, standard conditions, led him to seek and have another unknown Reno gunsmith resize the barrel to accommodate a longer cartridge, and to place a new stock on what, a year before, had been a standard, nationally advertized firing piece. At this june-*287ture only the middle of the original rifle remained factorywise. It is not quite clear why this portion of the firearm had not been replaced by the gunnery idiosyncracies of the plaintiff.
Plaintiff not only was a tinkerer, hut a “handloader,” obviously harboring an indisposition to use standard ammunition, and entertaining a bent for manufacturing his own unorthodox slugs. Such ammunition, undesigned for the gun he bought, and unknown in the market overt for use in the now newly calibrated, converted, blunderbuss, nonetheless was employed by plaintiff. After using these home-made, overstuffed, undesigned, unrecommended cartridges filled with faster-burning, more explosive and more highly pressured slugs than ever had been used before, his luck ran out after firing but two rounds. On the third, the middle of his rifle blew up, removing part of his finger which, I suggest, the defendant involuntarily purchased through the agency of what I consider to have been a wholly unreasonable jury.
Very little of the main opinion is devoted to what plaintiff did, what happened, or the nature or extent of plaintiff’s freedom from negligence. The remainder is a highly technical discussion of defendant’s negligence, based on highly disputatious opinion testimony given by experts, (one of whom, called by plaintiff, was a service station attendant by profession, not a gunsmith) a general dissertation on the proper place for expert testimony in the corpus juris, and an unnecessary tribute to the jury system.
As to any deification of the jury system, I do not consider it sacrilegious or irreverent to urge that apostasy is in order where the veniremen become heretical and kneel to worship the false god of unreason. I think this case calls for such an apostasy. I believe we should do something more than render lip service to a system just because it is a system, or espouse any concept or near concept that suggests the infallibility of juries.
In my opinion the wholly uncalled for, unreasonable, unauthorized and negligent transmutation of an article bearing the reputation of a well-known, national manufacturer into an instrument of danger, by one having a passion for flouting recommended operational and functional standards, points up an inescapable contributory negligence, that, as a matter of law, calls for denial of recovery.
If we cannot take hold of a case like this and give relief from such a misguided conclusion as was arrived at by the jury here, having to resort to generality and easy, convenient rules for affirmance, the function of judicial review, in my opinion, not only is impaired, but tends to inspire disrespect for the judiciary on the part of the average layman.
CALLISTER, J., concurs in the dissenting opinion of HENRIOD, J.