LeBlanc obtained a verdict in this action to recover for injuries suffered when he was struck by an automobile. It was alleged that the vehicle had been manufactured negligently by the defendant (Ford). Ford has argued various exceptions, including those (a) to the denial of its motion for a directed verdict, and (b) to the admission of expert testimony. The evidence is stated in its aspect most favorable to LeBlanc.
LeBlanc was employed by a Ford dealer. On September 27, 1958, he was given by one Godish, his foreman, the keys to a new nine-passenger automobile which the dealer had sold but had not yet delivered. LeBlanc was told to clean the automobile which was then standing near a driveway leading from the street to the back of the dealer's garage.
LeBlanc unlocked the door of the automobile, which had an automatic transmission. The "car was in neutral ... with the hand brake on; ... he turned the key and pressed on the accelerator." When the motor started, "he had it run for a while... [then] put it in drive and release[d] the hand brake." He proceeded to a point about eight feet from the garage door on an "apron ... located directly in front of the doorway." Then "he stepped on the ... foot brake and stopped the car ... put the selector in
As LeBlanc moved "to open the garage doors," he "observed a piece of glass on the apron [and] bent down to pick it up." Over the sound of the motor he "heard a click ... turned around, and the car was already on" him. The automobile, with its motor racing, pinned his right leg at the corner of the garage building, injuring him seriously. One of the sliding garage doors was banged in and knocked off its roller which "was cemented into the ... floor." LeBlanc was not able to move the automobile at all, even with the help of Godish, who came to his assistance.
Godish "jumped in the car and backed it off [about seven or eight feet], and LeBlanc fell to the ground.... [W]hen ... [Godish] got into the car ... he looked at the selector lever and it was in neutral." He put it in reverse to back the vehicle, did not remember applying or moving the hand brake, and "didn't notice whether the brake was on or off." He stopped the automobile "partly by the [mechanical] foot brake; the car seemed as though it stopped by itself ... when he took the foot off the gas pedal." He "put the car in `Park' and shut off the motor."
The dealer had purchased this automobile from Ford on May 16, 1958, and it had been delivered by trailer truck on May 19, "already greased, oiled and gassed." Upon delivery, some representative of the dealer "would go around the car" to check for "scratches or dents," but no inspection was then made of the motor or operating equipment connected with it. Automobiles, so delivered to the dealer, were stored on the dealer's premises until sold and were moved "quite frequently" around the premises, which included an unfenced area across the street, where LeBlanc himself first saw this vehicle.
From the point where LeBlanc left the automobile before the accident the ground sloped up slightly and uniformly toward the garage door. The front wheels of an automobile seventeen feet in length, placed on the apron seven or eight feet from the garage entrance, would be about an inch above the rear wheels.
One Dupont, an expert witness called by LeBlanc, testified that the selector lever of the automobile, below the steering wheel, is connected to the transmission by a link from the bottom of the steering post. All "working parts of the transmission are encased inside a metal housing."
A hypothetical question to Dupont, among other things, assumed that LeBlanc left the selector lever with the indicator showing it in neutral position and that Godish so found it. Dupont stated that for the automobile "to move ahead the clutch will be on either through a malfunction in the clutch itself or from some outside force such as a wrong or malfunctioning linkage." He went on to say, "If the unit is in neutral ... on either level or an up-grade ... the car cannot move forward unless there is a clutch applied.... If we have the clutch applied through its own means such as a malfunction or sticky clutch or through linkage out of adjustment, and if we have a carburetor which is racing, which this car should have been ... then we have met all the conditions for the car to move forward."
1. Ford contends that the mere happening of the accident did not constitute proof (a) that Ford, as manufacturer, was negligent in that it knew or should have known that the automobile was defective or would become so (see Carter v. Yardley & Co. Ltd. 319 Mass. 92, 96; Ricciutti v. Sylvania Elec. Prod. Inc. 343 Mass. 347, 352; Restatement: Torts, §§ 388 [and 1948 Supp.], 395), or (b) that the automobile's condition had not changed after it ceased to be within Ford's control in May. See Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 183; Selissen v. Empire Bottling Co. Inc. 343 Mass. 779. The Yardley case establishes that Ford, as manufacturer, with respect to persons who might use the automobile, had a duty of care in
The Yardley case did not relieve LeBlanc of the burden of proving (see the Ricciutti case, 343 Mass. 347, 352) that a defect attributable to Ford's negligence caused the injury or that after Ford "surrendered control of the ... [automobile, it] had not been improperly handled by himself or" others. See the Evangelio case, 339 Mass. 177, 183. There undoubtedly could have been tampering with, or abuse of, exposed portions of the linkage between the selector lever and the transmission during the four months while the automobile was stored on the dealer's lot. Interference with the encased transmission, of course, was less probable. In the absence, however, of some specific evidence to the contrary, the jury could reasonably regard it as unlikely that there would be tampering with the selector mechanism
If it had not been for the very specific evidence that the selector lever was in the neutral position when LeBlanc left the automobile just before his injury and when Godish entered it after the accident, the cause of the accident would be wholly a matter of conjecture. Cf. the Jastrzembski case, 100 F.Supp. 465, 466. Various circumstances
2. Ford contends that the expert's testimony should not have been admitted. The testimony was given with respect
Ford suggests that the hypothetical question erroneously omitted facts relating to (a) the manner in which LeBlanc started the automobile before the accident and let the motor run for half a minute, with the selector lever at the neutral position and with the hand brake on, and (b) the circumstance that "if one tried to start the motor ... and the selector ... was" in a drive position "the motor wouldn't start" (see fn. 1, supra). It was open to counsel for Ford to point out on cross-examination any omitted facts and then to inquire whether these facts affected the expert's opinion. M. DeMatteo Constr. Co. v. Daggett, 341 Mass. 252, 261. The facts omitted do not seem to us so significant that their omission from the hypothetical question made the question improper or required striking the answer. See Potter v. John Bean Div. of Food Mach. & Chem. Corp. 344 Mass. 420, 424. Cf. Brown v. United States Fid. & Guar. Co. 336 Mass. 609, 613-614.
3. We perceive no error in the refusal of the trial judge to strike a comment by the expert in the course of his explanation of the transmission mechanism. The witness had been asked to explain the mechanism and his comment was reasonable amplification of earlier testimony and relevant to his demonstration. The use, in the circumstances, of a model for such demonstration was within the trial judge's discretion. See Commonwealth v. Butynski, 339 Mass. 151, 153.