(dissenting). It is not for us to decide the ultimate factual issues. The question is only whether there was evidence in plaintiff’s case from which those ultimate issues could fairly be decided his way. I believe there was. And in this connection, I see no difference between an action for negligence and one for breach of implied warranty, for upon either approach, the pivotal question on the motion for judgment was whether the abrasive disc was defective when it left defendant’s plant. See Prosser, “The Assault upon the Citadel (Strict Liability to the Consumer),” 69 Yale L. J. 1099, 1114 (1960).
We are not dealing with a rubber band that broke and stung a finger. We are dealing with an abrasive disc intended to be spun on a wheel at some 3,600 revolutions per minute, and the jury could believe plaintiff’s description of the force with which the errant disc hit him:
“Q. All right. Will you tell us what it felt like? "A. Well, it was a terrific blow, like I got hit with a bat or something, and made me bend over, knocked the breath right out of me. I held onto the hose a while, a few seconds or minutes, I guess, and the fellow I was relieving came up and took my place, and I went over in a crouched position to my foreman and told him my disc just snapped in half and I would like to go to medics, and I showed him where it was bleeding from my belly button to here, it was all bruised up, so he gave me a pass and I went to the medics immediately, and when I got to the medics, the fellow there put some mercurochrome on and a bandage from my belly button to my side.
Q. Will you describe what this injury looked like? A. It was black and blue and bruised and bleeding in the center here.”
A jury could find the risk of such harm was unreasonable and not to be expected from a disc when put to its intended use, *189and hence that if the disc was here so used, it must have been defective.1
My difficulty with the majority opinion is that it assumes that other possible causes for the disintegration of the disc are reasonably involved and hence that plaintiff to prevail was required to exclude them. So far as I know, those possibilities may be wholly imaginary. Indeed, none of them was suggested in the pretrial order, which, I must regretfully add, was poor notwithstanding the case was ideal for a revealing and productive pretrial conference.
One such possibility discussed by the majority is whether the defect, if there were one, originated after the disc left defendant’s plant. If we were dealing with delicate china, I would recognize that intermediate handling could be a factor, but we here have a tough, flexible, abrasive disc designed to take punishing use. I find it incomprehensible that it could have been injured in shipment or handling. More importantly, I just do not know, and that being so, I ought not to burden plaintiff with excluding that possibility until something in the evidence indicates it is more than a phantom.
Next, the majority opinion says that plaintiff should have proved (1) that the man he replaced.at the wheel used the disc properly and (2) that the disc was not used beyond its expected life. I see no basis for requiring that proof. In the first place, I find nothing but the argument of counsel to suggest that improper or excessive use was realistically involved. My guess would be the other way. I would expect an abrasive disc to survive a mere lack of skill in handling the wheel; and as to excessive use, I read the record to say that a disc was expected to do the necessary job on five automobile bodies in the sense that the abrasive surface would be effective for that *190quantity. I do not read it to mean that a disc would explode or disintegrate the instant its abrasive surface became inadequate for the task at hand. But, if we ought seriously to entertain those possibilities at this juncture of the case, still a jury could readily infer there was no mishandling. Plaintiff was skilled and experienced, and I would infer that the regular operator whom plaintiff had relieved was trained for that work. Since both knew how to handle the wheel, why should we speculate that they departed from their regular practice and habit, and why should we assume that plaintiff did so idle a thing as to use the disc after it ceased to abrade ? I believe a jury could infer, on the record as it stands, that the disc was used as it was intended to be used when the accident occurred.
In this connection, I refer to the testimony of the engineer Gearhart that the disc must have been defective. His testimony was not struck, and it should not be discarded on a motion for judgment merely because the foundation might have been more explicitly drawn out. He was thoroughly familiar with these discs and with the grinding operation. His testimony could fairly be understood to mean that there is nothing the grinders could have done to account for the disintegration of an adequate disc and hence there must have been a defect. This testimony gives additional strength to proof which I would find to be independently sufficient to withstand-a motion at the close of plaintiff’s case.
Accordingly, I believe a jury could rationally infer from the evidence that the disc was defective when it left defendant’s plant and involved an unreasonable risk of harm. The evidence thus sufficed for the warranty theory. I think it was equally sufficient on the negligence thesis since, in the absence of some explanation by defendant, a jury could infer the defect was the product of its negligence. See Prosser, supra. 69 Yale L. J., at p. 1114. In that respect I disagree with the majority of the Appellate Division. I would modify their judgment accordingly and affirm it as thus modified.
Jacobs and Ekancis, JJ., join in this dissent.
*191For reversal — Justices Proctor, Hall, Scitettino and Haneman — 4.
For affirmance — Chief Justice Weintraub, and Justices Jacobs and Erancis — 3.
An alternative would be that the manufacturer expected these discs to break during their intended use, in which event there would be the different question whether defendant culpably failed to warn against this risk of injury. We need not pursue this alternative thesis since the record does not suggest the defendant expected the discs to behave in that way.