dissenting.
I dissent. It is clear that the automobile accident which occasioned plaintiff’s injury was caused by a mechanical defect in the vehicle which defendant was driving. The sole issue was whether defendant, in the execution of reasonable care, should have known of the defect and not driven the car at the time and place of the accident. The accident occurred because of the separation of the socket joint on the right control arm of the steering mechanism on defendant’s automobile. It is admitted that the ball came out of the socket joint just before the accident, causing the defendant to lose control of his vehicle, veer to the left and collide with plaintiff’s vehicle.
An examination of the socket disclosed that it had been damaged, “possibly” as a result of a blow from some obstacle to the control arm.
In an effort to show that this condition had developed over a period of time, and that it would have affected the steering mechanism to such a degree as to have been noticeable to the driver, plaintiff relies upon the testimony of George Hunt. Mr. Hunt describes himself as “a mechanical engineer basically, but I have over the last fifteen years or more, investigated a good many incidents of the sort before the Court here today”.
Mr. Hunt had never seen, driven or examined defendant’s car prior to the collision. This witness evolved a theory that the condition of the socket was the result of some prior damage to the socket joint. He was unable to state when the damage occurred, whether a day, a week or longer—he could not evaluate the time.
His testimony is that the socket was damaged because the control *393arm “presumably” struck some obstacle with sufficient force to crack it and start the chain of events. He said that any severe shock could “very readily” rupture or cause the socket to split. He had no personal knowledge that the control arm had ever received a blow of sufficient intensity to cause the rupture, but would “expect” that if the control arm or any part of the front wheel assembly had received a severe blow there would be some displacement of the front wheel, and such that the steering would be affected.
When counsel for defendant objected to this speculation, plaintiff’s counsel said to the witness, “Well, state it as your opinion”. Hunt then replied, “Well, it is my opinion that this would occur, sir.”.
Again, this witness testified that a blow of sufficient magnitude to rupture the socket would displace the control arm from its proper position and the result would be the car could have “a tendency” to pull to the right or left. He was unwilling to evaluate the tendency, whether slight or severe, but said, “This would be the most probable result. . . .” And further, “I would expect there would be some noise attached to this also. ...”,
When questioned as to the extent of the rupture and how much was the split, Hunt replied: “This I cannot evalaute. No, sir. It was not enough to let the ball out, certainly, but it was split”. He admitted that the split may have been just a hairline split and of such minimum degree that it was possible that the naked eye could not see it.
Admittedly, defendant’s vehicle had been used to transport men engaged in clearing rights-of-way and surveying. However, there is no evidence that the steering mechanism of this vehicle had ever received any severe blow or that the car had been involved in any accident. A number of witnesses who were thoroughly familiar with the car and its operation had noticed no defect or abnormality in the steering mechanism or the manner in which it operated.
Plaintiff’s witness, Nelson Gravatt, was in charge of the vehicle from mid-June to mid-July, 1964, and drove the car daily. He did not notice anything defective or wrong with the steering apparatus of the car. He said it handled in a normal way.
William L. Boswell, Jr., another witness for the plaintiff, drove the car frequently and observed nothing defective about the car or its steering. He last drove the vehicle on the morning of the accident.
Plaintiff’s witness, Norman Taylor, rode in the vehicle on the night of the accident, and, so far as he could determine from his observation, the car was driving all right.
*394The defendant drove the car the entire day of the accident, and over a great distance, and stated that the car operated and steered normally, and that so far as he knew it was in perfect shape. He could detect nothing in driving it that would cause him to think something was wrong. He first intimation of any difficulty in the steering mechanism was when the control arm separated from the joint and the car veered into the path of plaintiff’s vehicle.
So we have the positive testimony of four witnesses with an intimate knowledge of the vehicle and the manner in which it operated. All describe it as normal. Certainly we cannot find from their testimony that defendant, in the exercise of reasonable care, should have known of the defect in the steering mechanism—a defect which developed suddenly and caused the accident.
The testimony of Mr. Hunt is speculative and conjectural. It is based upon his theory of what might have happened, and not on facts disclosed by the evidence. His testimony that he would “expect” the defect he detected in the front wheel assembly of the car to have noticeably affected its steering must yield to the positive and affirmative testimony of four other witnesses who said the car operated and steered normally, and to defendant’s testimony that he had no knowledge or warning of any defect prior to the accident.
Plaintiff says that this case is controlled by Martin v. Penn, 204 Va. 822, 134 S. E. 2d 305 (1964), which involved a defective steering mechanism. That case can be clearly distinguished from the one under review. There the plaintiff Penn was riding as a “paying passenger” in the vehicle of the defendant Martin. Penn testified that prior to the accident he noticed that Martin was “having some difficulty” in steering his vehicle. Plaintiff also testified that Martin remarked, “something done happened to my truck”, and that shortly thereafter the accident occurred. Thus the defect there was so obvious and patent as to have been and was noticeable to the driver, and also to the passenger in the vehicle.
Also to be noted is the difference in the type and degree of the defect involved in Martin v. Penn, supra and that in the instant case. There a mechanic, or “expert”, who testified regarding the defective steering mechanism (resulting in a break of the drag link) said that the drag link end came loose because it was “worn out” and so defective that the steering wheel would have a lot of play or free motion in it. Another mechanic testified that the drag link was “worn excessively” thereby causing excessive play in the steering wheel. A third mechanic testified that the drag link was in a “worn condition”. *395A witness called by the defendant testified that the drag link was in fact “worn completely out”. The jury was therefore justified in finding that Martin operated a vehicle with a grossly defective steering apparatus, one that was so defective that the plaintiff noticed that the defendant was having difficulty steering the vehicle. It could further have found that in the exercise of reasonable care the defendant not only should have known that something was wrong, but did, prior to the accident, voice this very fact.
In the instant case we are dealing with a hairline defect which was not apparent to the eye. Here we have a defect that no one knows when or how it occurred—a defect which, according to Hunt, most probably could have resulted in a tendency to affect the steering in some degree—slight or severe. There is no evidence in the record that in the exercise of reasonable care a driver of a vehicle should be aware of a latent mechanical defect that manifests itself in such a manner.
The burden was on the plaintiff, Walrod, to prove by a preponderance of the evidence that the defendant Matthews was negligent, and that such negligence was the proximate cause of the collision and his resulting injury. I would hold that he failed to carry the burden, and that accordingly the trial court should have set aside the verdict returned in the first trial and entered final judgment for the defendant.
I concur with the majority that the trial court should have refused to grant a “sudden emergency” instruction. Nowhere was it contended by the plaintiff that defendant was guilty of any negligence subsequent to the break in the socket joint of defendant’s vehicle, and there is no evidence in the record of any such negligence.
Harman, J., joins in this dissent.