Stewart v. Ford Motor Co.

Decision Date16 May 1977
Docket NumberNos. 75-1676,s. 75-1676
Citation553 F.2d 130,179 U.S. App. D.C. 396
PartiesSarah B. STEWART, Individually and as Administratrix of the Estate of William L. Stewart, Jr., Appellant, v. FORD MOTOR COMPANY and Steuart Motor Company. Sophia RICH, Individually and as Administratrix of the Estate of Norman Rich, Appellant, v. FORD MOTOR COMPANY and Steuart Motor Company. Annie Collins CATHEY, Individually and as Administratrix of the Estate of William Rufus Cathey, Appellant, v. FORD MOTOR COMPANY and Steuart Motor Company. to 75-1678.
CourtU.S. Court of Appeals — District of Columbia Circuit

Fred C. Sacks, Washington, D. C., for appellants.

Frank J. Martell, Washington, D. C., for appellee Ford Motor Co.

Before WRIGHT and ROBINSON, Circuit Judges, and JAMESON, * Senior District Judge.

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

Dissenting opinion filed by JAMESON, District Judge.

J. SKELLY WRIGHT, Circuit Judge:

At approximately 9:15 A.M. on January 17, 1970 a Ford Thunderbird owned and operated by William Stewart was proceeding south on Interstate Route 95 in North Carolina. In the car were three passengers Norman Rich, William Cathey, and Ricco Hightower, members of Stewart's band which had performed the previous evening, finishing at 2:00 A.M. and returning to their hotel at about 2:30 or 2:45 A.M. The band members arose at 7:30 A.M. and left at 8:00 A.M. en route to their next engagement. The remainder of Stewart's band was traveling in a Ford Econoline van following immediately behind Stewart's car. While approaching a bridge across the Neuces River, Stewart's car left the highway, ran along the median strip at a slight angle to the highway, struck the bridge curbing, and plunged into the river, killing all four men instantly. The car had been purchased only 12 days before and had been driven only 1,400 miles before the accident occurred.

Plaintiffs, representatives of the decedents, filed separate actions against Ford Motor Company, manufacturer of the Thunderbird, and Steuart Motor Company, seller of the vehicle, 1 alleging that the accident was caused by "a defect in the steering mechanism or brake construction" of the vehicle in breach of the seller's and manufacturer's express and implied warranties. Following extensive discovery, the four actions were consolidated for trial. Four trials were held; the first three resulted in mistrials and the fourth in a verdict for defendant Ford Motor Company 2 from which the plaintiffs appeal. Because the jury instructions given were improper, we feel it necessary to reverse and remand for yet another trial.

I. EVIDENCE PRESENTED
A. Plaintiffs' Evidence

Plaintiffs called four witnesses on the issue of liability the highway patrolman who investigated the accident, an occupant of the Ford Econoline named Benny Deer, and two expert witnesses who examined the Thunderbird after the accident.

Trooper H. M. Bullock of the North Carolina Highway Patrol arrived at the scene at about 9:30 A.M. He testified that Interstate Route 95 in the area of the accident is a four-lane highway with two paved 22-foot-wide roadways separated by a 40-foot-wide median. Bullock stated that on the morning of the accident the median strip was even with the highway at the place where they met, sloped slightly toward the center for drainage, was covered with grass "two or three inches high," and was wet with dew. Where the vehicle left the pavement there was a small spot of six or eight inches of sand, and the officer could see the tire marks "as the car rolled across the sand." The officer found no other marks in the sand or on the highway before the point where Stewart's car left the road. From the tire tracks Bullock could ascertain that the Thunderbird left the paved section of the highway at a slight angle and traveled on the median grass strip a distance of 61 feet before the brakes were applied. Prior to application of the brakes the tires simply "left an impact in the grass." After the brakes were applied "the grass was torn up, where the wheels had slid, were dragging across the grass. It had uprooted the grass and had torn the grass up loose from the ground, leaving slide marks." From the point where the brakes were applied the slide marks continued on the grass median a distance of 89 feet six inches in a straight line, at the same angle to the paved highway, and ended at an eight-inch-high concrete curb or abutment between the two bridges approximately 13 feet from the edge of the southbound lane of the roadway. After striking the abutment the vehicle continued through the air for a distance of 110 feet and came to rest against a concrete bridge support 20 feet after striking the ground. On direct examination Bullock estimated the speed of the vehicle as approximately 60 miles an hour when it left the highway. On cross-examination he testified that it was going "at least 60 miles an hour."

Stewart was a diabetic. As a result of tests ordered by Bullock, reports were read into the record showing that Stewart's diabetic condition was under control and not related to the accident, and that no evidence of drugs or alcohol was found in Stewart's body. Bullock further testified that he found no drugs or alcohol in the Stewart vehicle.

Benny Deer, the drummer in the Stewart band, was riding in the Ford Econoline van which was following the Thunderbird. He testified that he was sitting in the seat directly behind the driver of the van and that he and the driver were the only occupants of the van who were awake. 3 Deer observed the Thunderbird moving from the right lane of the highway to the left lane to pass another car. He testified that looking from his seat in the van, through the rear window of the Thunderbird, he could see Stewart "wrestling" with the steering wheel and Rich, the right front seat passenger in the Thunderbird, reaching over in an attempt to assist Stewart in steering the car. On direct examination Deer testified that the van was approximately three car lengths behind the Thunderbird. On cross-examination it developed that the van could have been either 60 feet or 180 to 200 feet in back of the Stewart car.

Professor Samuel S. Aidlin, who was qualified as an expert in the field of mechanical engineering, testified that a crate containing the front end of Stewart's Thunderbird was shipped to him with the request by plaintiffs' counsel that he make an examination to determine the cause of the accident. Aidlin stated that in his laboratory the wrecked front end was pried apart "layer after layer." When Aidlin reached the steering mechanism he noticed that there was a broken tie rod connecting sleeve. Aidlin then supervised the taking of metallurgical tests of the tie rod sleeves to ascertain the cause of the break. He testified that the test indicated that the sleeve was manufactured without any defects and was of the proper hardness range. He stated, however, that in threading the sleeve "one of the threads came very close to the edge of the outer surface." It was Aidlin's opinion that the cause of the accident was a fatigue failure of the adjusting sleeve which caused Stewart to lose control of the Thunderbird and which prevented Stewart from correcting its course.

On cross-examination Aidlin was questioned concerning the speed of the vehicle and the amount of time it traveled on the median strip before striking the bridge abutment. Aidlin stated that a vehicle traveling 60 miles per hour would travel the 150 feet in about 1.4 seconds and that the normal reaction time for a driver to begin taking corrective action was .75 second.

Sydney H. Avner, after qualifying as a metallurgist, testified regarding tests he had performed at Aidlin's request. In his opinion the type of fracture in the left tie rod adjusting sleeve of the Stewart vehicle was a fatigue fracture and not an impact break, the fatigue failure caused by "the sharp corner at the bottom of the thread. It was a typical stress raiser."

B. Defendant's Evidence

Defendant called four expert witnesses on the cause of the accident. Calvin Cummings, a Ford quality control engineer and metallurgist, testified that electron microscopy of the fractured tie rod sleeve indicated that the cause of the fracture was impact rather than stress. He stated that the sleeve was bent and the fracture uneven typical characteristics of an impact fracture. He stated that typical fatigue fractures, unlike the Stewart tie rod sleeve, are clean and the severed pieces will fit back together perfectly. Cummings explained the results of simulated testing performed under his direction. A tie rod assembly, of the same type as on the Stewart vehicle, had been exposed to severe stress on a factory simulator. Although other parts of the assembly broke, the connecting sleeve remained intact. Then an excessively deep thread was placed in the connecting sleeve at the point where the Stewart connecting sleeve fractured. When this altered sleeve was placed on the simulator again no failure occurred. Cummings testified that the only time he was able to get a connecting sleeve to break was when he cut the sleeve using a hacksaw.

Cummings described tests he had conducted at the Ford proving ground using a 1970 Thunderbird, similar to the Stewart car, which had been purchased on the open market. During the tests the Thunderbird was driven at 60 miles an hour and the left tie rod connecting sleeve was severed by means of a wire running under the dashboard. The driver of the vehicle was able to bring the car to a controlled stop. The Thunderbird was then driven through an automobile handling course with the tie rod disconnected. The driver was able to control the car through the course. 4 Then the Thunderbird was subjected to a skidding test on grass with the sleeve disconnected. The resulting skid was different from that of the Stewart vehicle in that the...

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