Alexander v. Nash-Kelvinator Corporation

• Decision Date: 12 November 1958
• Docket Number: Docket 24807.,No. 215,215
• Citation: 261 F.2d 187
• Parties: John ALEXANDER and Annie Alexander, Plaintiffs-Appellees, v. NASH-KELVINATOR CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

261 F.2d 187 (1958)

John ALEXANDER and Annie Alexander, Plaintiffs-Appellees, v. NASH-KELVINATOR CORPORATION, Defendant-Appellant.

No. 215, Docket 24807.

United States Court of Appeals Second Circuit.

Argued April 8 and 9, 1958.

Decided November 12, 1958.

On Motion to Clarify December 8, 1958.

Eugene A. Sherpick, New York City (Pokorny, Schrenzel & Pokorny, Ralph Stout, William A. Blank, Brooklyn, N. Y., on the brief), for plaintiffs-appellees.

Edmund F. Lamb, New York City (Arthur V. Lynch, Sullivan & Cromwell, Purdy, Lamb & Catoggio, New York City, on the brief), for defendant-appellant.

Before SWAN, HINCKS and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Nash-Kelvinator Corporation, defendant below (referred to as "Nash"), appeals from a judgment entered against it in the District Court for the Eastern District of New York after a trial without a jury in favor of the plaintiff Annie Alexander for the sum of $165,000 and in favor of the plaintiff John Alexander for the sum of $47,000. The case was tried in two parts. The first part was devoted to the taking of proof on the subject of liability; the second part relating to damages was heard approximately one week after the trial court found in plaintiffs' favor on the issue of liability.

The facts briefly stated show that plaintiff John Alexander, on or about November 7, 1949, purchased a 1950 sedan automobile manufactured by Nash. The car was purchased from Charles Kreisler, Inc. (referred to as "Kreisler"), an independent but "authorized dealer" for Nash automobiles. From the moment Alexander took delivery on November 7, he had difficulty in steering the car. Turning the wheel to the right, he found that there was an excessive amount of play before steering action took effect; when attempting to turn to the left the steering mechanism was so stiff that he was unable to make a full turn without backing and going forward. On one occasion the steering wheel froze completely. Alexander complained to Kreisler of these steering conditions on several occasions but was advised that the car undoubtedly was stiff because it was new and that he should keep driving it.

On the day of the accident, November 24, 1949, Alexander was returning to New York from Philadelphia with his wife and granddaughter. As they were traveling through Morrisville, Pa., at about 25 miles an hour without warning the car suddenly veered to the left at a 45 degree angle and in approximately one second crashed into a large tree which was close to the lefthand curb. Alexander had tried to turn the steering wheel to the right to avoid the collision but found it locked. He then heard a loud click and the steering wheel swung freely in his hand, although it was still attached to the steering post. He was unable to apply his brakes in the time available and the left front side of the car struck the tree with such force that Alexander and his wife, Annie were seriously injured.

The principal physical evidence before the trial court consisted of a part of the steering post, together with a gear housing which contained a worm gear and a sector gear. These parts were removed from the car and were examined at the New York Testing Laboratories and by expert witnesses for both sides before and during the trial.

Plaintiffs contended, and the trial court found, that "The sector gear was misaligned on the worm in the housing of the steering chuck * * *" (Finding 21); that "The mechanical stops, if present and properly adjusted on the steering linkage, would have prevented and corrected overtravelling of the sector gear on the worm and would have prevented it from being disengaged * * *" (Finding 22); and that "At the time of the accident, as a result of the faulty construction, manufacture and assembly of the car at defendant's plant, the sector gear had overtravelled and become disengaged from the worm and the front wheels were caused to suddenly veer to the left and the steering wheel was caused to become disengaged from the steering mechanism, all of which brought about the accident" (Finding 36).

Many of the findings of fact which attempt to attribute a definite mechanical cause to the malfunctioning of the steering apparatus are either based upon conjecture or are without adequate supporting proof. This situation is not surprising because no one will ever know with certainty exactly what happened. The steering mechanism was purchased by Nash from an independent and reliable manufacturer. Nash installed the mechanism at its factory. All that the experts had before them was the steering mechanism after the accident and the most that they could supply was opinion evidence from the actual pieces of machinery examined by them. Nevertheless, there was sufficient proof from which they could hazard an opinion as to the proper or improper alignment of the various parts by which the front wheels of the car were supposed to be turned when the steering wheel was turned by the driver of the car. However, in arriving at a decision it is unnecessary to speculate as to the mechanical aspects of the case in order to determine the question of liability. Whatever may have been the precise mechanical cause there was ample evidence which, if believed, showed that the steering apparatus did not function properly when the automobile was received by Alexander. And if the trier believed Alexander and his witnesses, there was evidence from which it might reasonably have inferred, notwithstanding some evidence to the contrary, that the mechanical cause of the defective functioning of the steering mechanism came into existence before, and not after, the automobile was delivered by the defendant to Kreisler and could readily have been detected by a simple driving test before leaving the manufacturer's possession.

Defendant argues that the physical evidence, namely the condition of the steering mechanism, precludes a finding that the plaintiffs' injuries were caused by any negligence of Nash; that Nash is not liable because it purchased the steering apparatus from a reliable manufacturer; that plaintiff's knowledge that the steering mechanism was defective and his continued driving despite this knowledge precludes liability on Nash's part; that plaintiffs voluntarily assumed the risk of driving a defective automobile; and that the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, is not applicable where the purchaser has knowledge of the defective condition.

Attempting to avoid the doctrine of MacPherson v. Buick Motor Co. which is accepted in Pennsylvania, Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517; Krisovich v. John Booth, Inc., 1956, 181 Pa.Super. 5, 121 A.2d 890, and upon which plaintiffs' theory of liability is based, appellant argues that Alexander's own testimony about the troubles he had in steering his car, specifically his inability to turn more than about a quarter turn to the left, shows that he was aware of the dangerous nature of the car. He explained that he continued to drive the car only because he...