the court pointed out that the time when the accident and resulting injury occurred, whether soon or long after the sale and delivery of the article causing the injury, is manifestly of importance upon the question of its known imminently dangerous quality when sold and delivered.
In Ford Motor Co. v. Wolber, 7 Cir., 1929, 32 F.2d 18, the court there pointed out that the manufacturer was not negligent in the design and construction of the machine for it had been used safely for two years prior to the time of the injury.
In Lynch v. International Harvester Co., 10 Cir., 1932, 60 F.2d223, the court there denied recovery when a covering on a threshing machine broke after 5 years of use because the court felt that the use of the machine for 5 years was a conclusive denial and contradiction of the allegations that the machine was imminently dangerous to life and limb when it was delivered.
In Schindley v. Allen-Sherman-Hoff Co., 6 Cir., 1946, 157 F.2d 102, the United States Court of Appeals for the Sixth Circuit followed the reasoning of the Court of Appeals in the Tenth Circuit in the Lynch case and cited its reasoning with approval.
In Loop v. Litchfield, 42 N.Y. 351, the court there pointed out that the risk could hardly have been an imminent one where a machine had been in operation for 5 years before a balance wheel on a circular saw burst.
In MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, the court pointed out that they were dealing '* * * with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers.' In this case the truck or tractor when manufactured was used by its original purchaser for some 100,000 to 200,000 miles until the truck was involved in a fire, after which the present owner purchased it and replaced the motor and used it for a period of 3 to 4 additional years from the time it was damaged by the fire and for at least 100,000 to 200,000 additional miles. It also must be obvious that the owner of the truck did inspect it when he replaced the motor and the plaintiff's own testimony is that the motor in this truck must have been rebuilt every 75,000 miles.
We do not have a situation here such as in the MacPherson case. The truck was used between 200,000 and 400,000 miles safely. There is no evidence as to the cause of the breaking of the fly wheel, nor is there any evidence to substantiate the allegations in the plaintiff's complaint.
The plaintiff having failed to establish that the defendant failed to exercise reasonable care in the manufacture of the fly wheel cannot recover in this action, and the defendant's motion for a directed verdict is granted.
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