dissenting.
I dissent from that portion of the majority opinion which holds that the trial court erred in allowing a directed verdict in favor of the defendant seller, Rogue River Hardware.
The plaintiff alleged that the 9" table saw and insert "were defective as a result of their design * *
The defendant Rogue River Hardware argues that "[t]here was no competent evidence introduced to show that the design of the saw was defective or that the alleged defective design was the cause of the accident” and that "[e]xpert testimony was necessary to make a jury question on these issues.”
The plaintiff argues, "The jury could easily have concluded from Plaintiff’s testimony that the saw was being operated in the proper manner and that through no fault of the Plaintiff, the insert flew from the saw causing Plaintiff’s injuries” and that "the only reasonable inference to be drawn from Plaintiff’s testimony and from the evidence, was that the insert was designed in such a manner as to allow it to tip” and contact the cutter head.
The plaintiff offered no expert testimony. The plaintiff testified that he did not know how or what caused the accident. Plaintiff did offer considerable circumstantial evidence of alternate designs of com*353peting brands of table saws and that other brands of saws had devices to hold the insert in the base or table of the saw.
The defendant offered engineering and expert testimony that there was no defect in the design of the saw and that in 10 years’ use of the saw and insert, no insert had come out while the saw was in use. There is also testimony that one and one-half million saws of this design have been sold and there was no report of an accident of the nature here involved.
The instant case involves a technical piece of machinery and its design requires more than "common knowledge and experience” to understand and explain if there was a defect in the saw involved. The effect of the majority opinion would be to allow all cases of this nature to go to the jury for their determination as to liability. Without expert testimony, it is my opinion that the jury would have nothing but conjecture on which to reach their decision.
The burden of proof of defective product design is on the plaintiff.
"Proof of nothing more than that a particular injury would not have occurred had the product which caused the injury been designed differently is insufficient to establish a breach of the manufacturer’s or seller’s duty as to the design of the product. And mere proof of occurrence of the injury itself is not proof of improper product design.” (Footnotes omitted.) 2 Hursh and Bailey, American Law of Products Liability 301, § 9:17.
"Expert testimony may, and often does, play an important part in proving or disproving, in a products liability case, a defective product design. The offering of expert testimony by the plaintiff to establish alleged negligent design has been held to raise a jury question whether such design is negligent.” (Footnotes omitted.) Id. at 306, § 9:18.
In some cases expert testimony, in product liability cases, is indispensable. 1 Frumer and Friedman, Products Liability 254.43, § 12.02(1).
*354The plaintiff in this case did not plead or prove his case on the basis of res ipsa loquitur.
"* * * However, res ipsa loquitur will not be applied in a defective-design case where it appears that the product might have been fit for its purpose when delivered by the defendant.” (Footnote omitted.) 2 Hursh and Bailey, American Law of Products Liability 301-02, § 9:17.
In Denny v. Warren, 239 Or 401, 405, 398 P2d 123 (1964), a defect or leak developed in a brass coupling and the evidence disclosed there were three possible causes for the leak. We said:
"* * * [I]n order to apply res ipsa loquitur, it must be possible to say * * * that it is more probable than not that the person whose negligence caused the injury was the defendant and not some third party, e.g., in the case before us, a remote supplier.”
See also Pattle v. Wildish Construction Co., 270 Or 792, 797, 529 P2d 924 (1974).
In the present case plaintiff was running a short block of wood, with the aid of a homemade wooden jig, between the cutter head and the fence to make short pieces of moulding. Common sense dictates that this is a dangerous operation and should be avoided. Defendant’s engineer testified that this caused a bind and the rotating cutter head rejected the wooden block and caused undue force on the insert, which in turn struck the plaintiff. The plaintiff acknowledged the danger in cutting short pieces of wood on any table saw under the method he was using at the time of the accident. This procedure was contrary to the instructions in defendant’s operational manual, which plaintiff acknowledged he had read.
In this case the defendant offered expert testimony as well as other testimony which showed there was no design defect, as alleged by plaintiff. The plaintiff offered no expert testimony and only circumstantial evidence as to what might have caused his injury. Under these circumstances the probabilities are greater that the accident was caused by plaintiff’s *355negligent manner in which he was operating the saw than by a defective design in the table saw.
"* * * It was incumbent upon plaintiff to show that of the various possibilities the theory imposing liability on defendants was the most probable; to require less would permit the jury to speculate. * * *” Skeeters v. Skeeters, 237 Or 204, 214, 389 P2d 313 (1964).
Under these circumstances the jury should not be allowed to speculate that the design of the product was defective. For this reason I would affirm the trial court in granting the directed verdict in favor of defendant Rogue River Hardware.