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June 27, 1969

John E. KRIDLER and Margaret J. Kridler, Plaintiffs,
FORD MOTOR COMPANY and Zook Motors, Inc., also known as Zook Ford and Bruce Zook and John Zook, trading as Zook Motor, Inc., Defendants

The opinion of the court was delivered by: WEBER

 This is a suit for personal injuries received in a one-car accident. Liability is claimed solely under express and implied warranties made in connection with the sale of the car. After extensive deliberation the jury failed to come to a verdict and we now consider motions of Defendants for a directed verdict and for verdict or judgment notwithstanding the failure of the jury to arrive at a verdict. Defendants argue that the evidence of any defective condition in the automobile was not sufficient to allow the case to be submitted to the jury and, more specifically, that the expert testimony on causation was insufficient to prove causation. This is a diversity action and Pennsylvania law governs.

 Plaintiffs purchased a new 1963 Ford Fairlane from defendant Zook Motors, Inc., on March 28, 1963. They received the standard printed auto form warranty from Zook. The terms of the warranties under which plaintiffs claim are not important for our present considerations because of the grounds asserted in the present motions.

 Plaintiffs allege that after taking delivery of the car from Zook they made frequent complaints about "hard steering" on turns to either side up to the time of the accident, and had taken the car to the dealers a number of times for servicing. Plaintiffs also testified that the original front tires on the car wore unevenly, and required replacement, although after an alignment of the front wheels by Zook there was no further evidence of uneven wear and none was found on inspection after the accident.

 Approximately five months after delivery and after 12,000 miles of driving the plaintiffs were riding along a highway and had just cleared the top of a hill when they observed a line of cars ahead slowing to allow the lead car to make a turn to the right. Mr. Kridler applied his brakes, lost control of his car which left the highway and ended up in a ditch, with the resulting injuries to plaintiffs.

 Plaintiffs' entire case on liability depends upon the proof of any defect existing in the automobile at the time of its delivery, either by the manufacturer (Ford) or the dealer (Zook) and proof that such defect was the proximate cause of the accident.

 After the accident a mechanic found the tie rod bent considerably with the front wheels toed-out at an angle so that the automobile could not be operated at normal speeds. There was no dispute that the impact of this vehicle with a ditch at the time of the accident could cause such a bend. There is also no dispute that the bend, as found after the accident, could not have existed before the impact. The vehicle was repaired by the replacement of the tie rod and thereafter operated normally.

 Plaintiffs' entire case as to the presence of a defect and that defect causing the accident rests on the testimony of plaintiff John Kridler, and his expert witness L. H. Nagler, an automotive engineer.

 Mr. Nagler's conclusion that the tie rod was defective was based on testimony that Mr. Kridler experienced excessive tire wear, uncertain steering characteristics and that the tie rod was bent after the accident.

 The testimony of Mr. Kridler was to the effect that the car steered hard, that it steered like a truck on right and left hand turns. Mr. Nagler would have preferred a more precise description that he was having uncertain or erratic directional characteristics, i.e., that the automobile would drift or veer on the straight-away. Mr. Nagler testified that he considered the description "hard-steering" a factor even though this description was vague, it was "as good as one can expect of the average driver." (T. Vol. V., p. 49.)

 The second condition Mr. Nagler considered was the fact that the tie rod was bent after the accident, even though he admitted that the final shape of the tie rod did not exist before the accident. (T. Vol. V., p. 46.) No explanation was given for this conclusion.

 The most significant condition upon which he based his opinion was the observation of excessive uneven tire wear on the first set of front tires which indicated to him that something was wrong with the steering, suspension and front end alignment. (T. Vol. V., p. 45.) Yet the evidence adduced at trial was that the set of front tires on the Kridler automobile at the time of the accident were not wearing excessively.

 In Knapp v. Willys-Ardmore, Inc., 174 Pa.Super. 90, 100 A.2d 105 [1953], the purchaser of an automobile sought to recover the purchase price of his automobile because an alleged defective steering mechanism caused the new car to go out of control and strike a telephone pole. In the eight day period following delivery the plaintiff had driven the car for a total of 107 miles and prior to the accident had no indication of any defects. Plaintiff testified that the car was proceeding normally and suddenly veered to the right. A disinterested third-party corroborated this by testifying that the car suddenly wobbled and that the accident occurred immediately thereafter. On inspection of the car after the collision, a tie rod at the right end of the steering assembly was disconnected and bent and the connecting sleeve was broken. A mechanic testified that the bend in the rod was from a force from below and not from a head-on force. The Court found that the plaintiff had carried the burden of proof as to the inference that the car was defective when delivered and stated that the test of sufficiency of the plaintiff's evidence was whether or not the circumstances shown were such as would satisfy a reasonable mind that the defective condition existed when the automobile was delivered to plaintiff.

 In the present case, even with the extenuating circumstances of the car being driven for over 12,000 miles, the fact that Mr. Kridler had struck a deer with the front portion of the car, and the fact that Mr. Nagler found no basic design fault with the tie rod of the Ford Fairlane series, we believe plaintiff under this state of the evidence would be entitled to have the jury determine whether or not the Kridler automobile was defective at the time of its delivery. See also Flavin v. ...

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