252 S.C. 202 (1969) 166 S.E.2d 173

Janet MICKLE, by her Guardian ad litem, W.E. Mickle, Plaintiff-Respondent-Appellant,
v.
Larry Wayne BLACKMON, Respondent, and Ford Motor Company, Incorporated, Respondent-Appellant.

18869

Supreme Court of South Carolina.

February 10, 1969.

*203 *204 *205 *206 *207 *208 *209 Messrs. John M. Spratt, of York and Taylor B. Rion, and Robinson, McFadden & Moore, of Columbia, for Appellant, Cherokee, Inc.

*210 Messrs. James P. Mozingo, III, and D. Kenneth Baker, of Darlington, Hayes, Brunson & Gatlin, of Rock Hill, William E. Chandler, Jr., of Greenville, and Greer & Chandler, of Darlington, for Respondent, as to Appellant, Cherokee, Inc.

*211 Messrs. John M. Spratt, of York, S.C. and Taylor B. Rion and Robinson, McFadden & Moore of Columbia, for Appellant, Cherokee, Inc., in Reply.

Messrs. James P. Mozingo, III, and D. Kenneth Baker, of Darlington, Hayes, Brunson & Gatlin, of Rock Hill, William E. Chandler, of Greenville, and Greer & Chandler, of Darlington, for Appellant, Janet Mickle.

*213 Messrs. Vernon E. Sumwalt, of Rock Hill and William B. Webb (now deceased), of Charlotte for Respondent, Ford Motor Company.

*214 Messrs. James P. Mozingo, III, and D. Kenneth Baker, of Darlington, Hayes, Brunson & Gatlin, of Rock Hill, William E. Chandler, Jr., of Greenville, and Greer & Chandler, of Darlington, for Appellant, Janet Mickle, in Reply.

Messrs. Vernon E. Sumwalt, of Rock Hill, and William B. Webb (now deceased), of Charlotte, N.C., for Ford Motor Co., contingent and alternative Appellant.

*215 Messrs. James P. Mozingo, III, and D. Kenneth Baker, of Darlington, Hayes, Brunson & Gatlin, of Rock Hill, and Greer & Chandler, of Darlington, for Appellant, Janet Mickle, in response to alternate appeal.

*217 Messrs. Vernon E. Sumwalt, of Rock Hill, and William B. Webb, (now deceased), of Charlotte, N.C., for Respondent, Ford Motor Company, in Reply, on contingent and alternative appeal.

February 10, 1969.

BRAILSFORD, Justice.

On May 29, 1962, in the City of Rock Hill, seventeen-year-old Janet Mickle was a passenger in a 1949 Ford automobile, driven by Kenneth Hill. At the intersection of Jones Avenue and Black Street, this vehicle was in collision with an automobile driven by Larry Blackmon.

Janet was impaled on the gearshift lever, which entered her body behind the left armpit, penetrated to her spine, damaged the spinal cord at about breast level and caused complete and permanent paralysis of her body below the point of injury. She sued (1) Larry Blackmon, alleging negligence in the operation of his automobile, (2) Cherokee, Inc., a construction company which was engaged in widening Black Street, alleging negligence with respect to the removal of stop signs at the intersection and the failure to take proper precautions thereafter, and (3) Ford Motor Company, alleging negligence in the design and composition of the gearshift lever and of the knob or ball affixed thereto.

*218 The trial resulted in an apportioned verdict for plaintiff against Cherokee, Inc., for $468,000.00 actual damages and against Ford Motor Company for $312,000.00 actual damages. The jury found no damages against Blackmon, and he is not a party to the appeal.

Cherokee moved unsuccessfully for judgment notwithstanding the verdict, for a new trial and for a new trial on after-discovered evidence and has appealed from the denial of these motions.

The circuit judge granted the motion of Ford Motor Company for judgment notwithstanding the verdict, and plaintiff has appealed. The court found no merit in Ford's alternative motion for a new trial, and Ford has filed a contingent and alternative appeal by which it seeks to preserve for review the grounds of this motion.

I

We first consider the sufficiency of the evidence, viewed in the light most favorable to the plaintiff, to establish actionable negligence on the part of Cherokee.

For some months prior to the day of the collision, Cherokee had been engaged, under a contract with the South Carolina Highway Department, in widening Black Street from 30 feet to 44 feet. On that day work had been in progress in the block south of the Jones Avenue intersection and in the intersection itself.

Jones Avenue was the through highway and was protected by stop signs facing traffic on Black Street. Preparatory to grading new radiuses at the intersection, a Cherokee employee removed these stop signs, at about 11:00 A.M., on May 29, 1962, according to his testimony and that of other witnesses for Cherokee, several days before, according to a witness for plaintiff.

At about 2:30 P.M., Kenneth Hill and Janet Mickle were traveling north on Jones Avenue toward the intersection. He was familiar with the route and knew that Jones Avenue *219 was the through highway. At the same time, Larry Blackmon approached on Black Street from the west. He had entered Black Street from Green Street after stopping at a stop sign facing Green Street traffic. Traffic at the next intersection was controlled by a signal light. There were stop signs facing all entrances at the next intersection, Spruce Street, referred to in the record as a four-way stop, and Blackmon stopped before entering. The next intersection, Stonewall, was only one block west of Jones Avenue. Here there were no stop signs facing Black Street, which, inferentially, was the through street.

As Blackmon approached Jones Avenue he observed that there was no stop sign facing him. He testified that he was unfamiliar with the intersection and did not know that Jones Avenue was the favored highway. The usual construction signs were in place along Black Street and the fact that the roadway was under construction was otherwise evident. The stop signs were lying on the ground where they had been placed by Cherokee's employee. Inferentially, the grading had been completed at this intersection, and the motor grader had been moved to another location.

The two automobiles entered the intersection at approximately the same time^[1] with the Hill vehicle on the right. The view was somewhat obstructed and neither driver saw the other until the collision was inevitable. Blackmon testified: "I got into the intersection and glanced up, and there was the Hill car. * * * I throwed on my brakes as fast as possible and swerved." Hill testified: "As I got into the intersection I happened to glance to my left and seen the Blackmon car headed my way. * * * (I)n a split second the Blackmon car hit me on the left."^[2]

It is reasonably inferable from the testimony that the stop signs could have been replaced before the collision, as they *220 were a short time afterward and before any additional work had been accomplished, or temporary signs could have been set up, or other means could have been employed to warn travelers on Black Street of their duty to stop before entering the intersection. But Cherokee took no measures to furnish such warning, nor did Cherokee attempt to warn travelers on the through highway that the stop signs were not in place.

It is also inferable that the absence of stop signs at this intersection created a deceptive situation in which the danger of a collision was greatly increased. It was for the jury to determine whether Cherokee was negligent in failing to take any precautions to warn motorists using the two streets of this hazard.

While it is argued in the brief that Cherokee was not guilty of negligence, the motion for a directed verdict at the trial did not challenge the sufficiency of the evidence in this respect. Instead, the motion rested upon an asserted lack of causal connection between the absence of the signs and plaintiff's injuries. This is also the point most strongly urged in the brief.

Section 46-421, Code of 1962, applies at intersections where neither stop signs nor other traffic control devices have been erected. A motorist approaching such an intersection is required to yield the right-of-way to a vehicle which has entered the intersection from a different highway; and, where two vehicles enter the intersection at approximately the same time, the driver of the vehicle on the left is required to yield to the vehicle on the right. Cherokee argues that the removal of the stop signs had no casual connection with the collision because, absent the signs, Blackmon was, nevertheless, required by the terms of this statute to yield the right-of-way. It is contended that Blackmon's negligence in failing to comply with this statutory duty^[3] and in failing to exercise such care as to speed and *221 lookout at an "uncontrolled intersection," as common prudence required, was, as a matter of law, the sole proximate cause of the collision. We disagree.

The jury could reasonably conclude that the absence of the stop signs was calculated to mislead a traveler on Black Street as to his duty at the intersection. We need not ignore the reality that jurors and judges, in common with other motorists, from almost universal usage, have learned to rely upon the presence of traffic control signs or signals at all save, perhaps, the least traveled intersections. Stop and go signal lights are constructed and located so as to be conspicuous to motorists on both intersecting highways. On the other hand, stop signs are designed and located so as to command the attention only of motorists on unfavored streets as they approach intersections with through highways. No corresponding signs are placed on favored highways to declare their status; and a stop sign on an unfavored highway is not conspicuous to a motorist on the intersecting highway, nor is the absence of such a sign conspicuous to him. Absent a traffic signal, a motorist approaching an intersection expects that traffic on one street will be controlled by a stop sign. The absence of one of these familiar and distinctive signs facing him is readily apparent and naturally suggests that one is in place on the intersecting street.

We held in Eberhardt v. Forrester, 241 S.C. 399, 128 S.E. (2d) 687, that the temporary absence of a stop sign does not alter the status of a preferred highway, and that a motorist on such highway, unless he has knowledge of the absence of the sign, is entitled to assume that a vehicle on the secondary highway will stop. On the other hand, a motorist on the secondary highway is not required to stop, except as otherwise required by the exercise of due care, if he does not have knowledge of the character of the through highway. Of course, a motorist, regardless of right-of-way, is required to keep a reasonably vigilant lookout on approaching an intersection.

*222 A part of the risk created by Cherokee was that a motorist on Black Street, unfamiliar with the Jones Avenue intersection and not being confronted by a stop sign, would, whether negligently or not, enter the intersection with his vigilance blunted by the false appearance that Black Street traffic had the right-of-way. At the same time there was the risk that a motorist on Jones Avenue would enter the intersection relying upon the effectiveness of the stop sign which normally protected traffic on the through street. The jury was fully justified in concluding that these risks were realized because of Cherokee's negligent failure to guard against them, and that there was causal connection between Cherokee's negligence and plaintiff's injuries.

Cherokee urges as an alternative ground that the intervening negligence of Blackmon broke the chain of causation between its negligence, if any, and plaintiff's injury, so that its conduct became the remote cause rather than a proximate cause of such injury. The question is whether Cherokee's responsibility was superseded as a matter of law by the intervening conduct of Blackmon. This question must receive a negative answer.

The rule is firmly established that the intervening negligence of a third person will not relieve the original wrongdoer of responsibility if such intervention should have been foreseen in the exercise of reasonable care. "In such case the original negligence still remains active, and a contributing cause of the injury." Woody v. South Carolina Power Co., 202 S.C. 73, 24 S.E. (2d) 121: Mathews v. Porter, 239 S.C. 620, 124 S.E. (2d) 321. "The wrongdoer may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his negligence." Brown v. National Oil Co., 233 S.C. 345, 105 S.E. (2d) 81.

Here the intervention of third persons entering the intersection from different streets at the same time, or in dangerous proximity to each other, whether negligently or not, was foreseeable, at least the jury could so find, *223 and was the very hazard created by the removal of the stop signs. The realization of the risk created or substantially contributed to by a defendant's negligence, even though it involves the intervening negligence of another, can not soundly be held to supersede the defendant's responsibility, Prosser on Torts, 3d ed. at 312.

The following decisions from other jurisdictions tend to support our conclusion that the issue of proximate cause as to Cherokee was properly submitted to the jury. See Irvin v. Padelford, 127 Cal. App. (2d) 135, 273 P. (2d) 539; Ferroggiaro v. Bowline, 153 Cal. App. (2d) 759, 315 P. (2d) 446, 64 A.L.R. (2d) 1355; Lyle v. Fiorito, 187 Wash. 537, 60 P. (2d) 709; Phinney v. City of Seattle, 34 Wash. (2d) 330, 208 P. (2d) 879.

II

Cherokee next contends that its negligence, if any, "could have contributed to the collision only through the actionable negligence of Larry Blackmon," whom the jury has exonerated. Citing Chapman-Storm L. Corp. v. Minnesota-S.C.L. & T. Co., 183 S.C. 31, 190 S.E. 117. Cherokee urges that the verdict discharging the joint tort-feasor through whose sole agency the tort was committed operates to discharge all others. The cited decision turned on the master and servant relationship between the exonerated tort-feasor and his co-defendant. It has no application here. Cherokee was not sued on the theory that it was responsible for Blackmon's delict. The underpinning of the verdict against Cherokee was the jury's finding that Cherokee was guilty of actionable negligence. Blackmon's exoneration by the jury does not subvert it.

III

At the conclusion of the evidence, counsel for Larry Blackmon made a series of motions to strike various specifications of negligence from the complaint. These motions were resisted by counsel for Cherokee, but counsel for plaintiff stated that they did not oppose them, and finally announced *224 that they would not oppose the direction of a verdict for Blackmon. Again counsel for Cherokee objected, and the judge reserved his ruling. When the matter was again taken up, counsel for plaintiff requested permission to withdraw their consent to a directed verdict. This request was, in effect, granted, and the motion was overruled after certain specifications of negligence had been stricken, with the acquiescence of plaintiff's counsel.

Cherokee contends that by the foregoing conduct and by their comparatively friendly attitude toward Blackmon in argument to the jury, plaintiff's counsel accomplished his release as a joint tort-feasor. They invoke the ancient common-law rule that, regardless of the intention of the parties, the release of one joint tort-feasor releases all.

This technical, often criticized rule, which rests upon the fiction, among others, that a release implies a satisfaction, has been the subject of much litigation in other jurisdictions. Courts and legislatures have been astute to mitigate its impact. The decided trend of modern authority is that the release of one tort-feasor does not release others who wrongfully contributed to plaintiff's injuries unless this was the intention of the parties, or unless plaintiff has, in fact, received full compensation amounting to a satisfaction. Professor Prosser says that by virtue of statutes in some states and court decisions in others, this is the rule now actually applied in some two-thirds of the American jurisdictions. Prosser on Torts, 272 (3d ed.) See also Annotation, 73 A.L.R. (2d) 403.

No case in which this court has grappled with the problem has been cited, and we find none. We need not now either adopt or repudiate the controversial rule. We decline to give it novel application to the facts of this case, which do not involve a release from which the fiction of a satisfaction could be raised.

*225 IV

Cherokee's claim that the court erred in refusing its motion for a new trial upon the ground that the verdict was against the weight of the evidence raises no issue for determination here. Our jurisdiction in a law case is limited to the correction of errors of law; we have none to pass upon the weight of evidence. 1895 S.C. Const. Art. V, sec. 4.

V

Cherokee seeks a new trial upon the ground that, in a number of instances during the examination and cross-examination of witnesses and in argument to the jury, plaintiff's counsel was guilty of prejudicial misconduct. Since this challenge to the verdict was not presented to nor passed upon by the trial court and is not included in any exception on this appeal, it is not properly before us. West's South Carolina Digest, Appeal & Error, Keys 169, 248.

VI

Again adverting to the action of the court in striking from the complaint certain specifications of negligence against Larry Blackmon, Cherokee claims to have been prejudiced thereby, and excepts to the refusal of its motion for a new trial on this ground. Blackmon moved to strike all twelve specifications. The plaintiff resisted the motion as to six. The court refused to strike these, but, with plaintiff's acquiescence, granted the motion as to the other specifications. The ruling of the court was based upon the view that the state of the pleadings as between plaintiff and Blackmon was of no concern to Cherokee. We agree.

Cherokee had no right to insist that Blackmon be joined as a defendant in the first instance. Doctor v. Robert Lee, Inc., 215 S.C. 332, 55 S.E. (2d) 68; nor did it have the right to insist that plaintiff go to the jury on all of its specifications of negligence against him. Cherokee's right to expound to the jury any view of the evidence tending to exculpate it and fasten the blame on *226 Blackmon was not impaired. While it is quite understandable that Cherokee would have opposed the motion, we find no error as assigned.

VII

Cherokee claims error in the court's instructions to the jury in several particulars.

Evidence was presented at the trial from which the jury could have inferred that Blackmon, despite his contrary statement, did know that Jones Avenue was the through street and that a motorist on Black Street was required to stop before entering the intersection. As a convenient means of stating the first point argued by Cherokee, we quote from the brief:

"On the basis of this testimony and in reliance on the opinion in Eberhardt v. Forrester, 241 S.C. 399, 406, 128 S.E. (2d) 687, Cherokee requested the Court to charge that `if the defendant Blackmon had knowledge of the character of this intersection then the law required him to stop before proceeding, even though the sign is absent.' This the Court declined to do. * * *

"We submit that the requested charge was proper, that it related to a vital issue in the case, that its refusal was prejudicial and that the request had support in Eberhardt v. Forrecter [Forrester], supra, where the Court said:

"`A motorist on a secondary highway is required to stop if he has knowledge of the nature of the preferred highway, even though the sign is absent, p. 406 [128 S.E. (2d) 687].'"

It was not error to refuse this request because the jury was fully instructed, in the language of the Eberhardt case, including the excerpt quoted from the brief, as to the duties of motorists when stop signs are temporarily down at the entrance to a through street or highway.

The same disposition must be made of the complaint that the court erred in failing to give the following instructions as requested:

*227 "4. Even if a motorist is not familiar with an intersection where a stop sign is temporarily absent, and therefore, is not required to stop, he may be otherwise negligent in failing to reduce speed, failing to keep a proper lookout, failing to yield to another vehicle already in the intersection or which entered from the right at the same time he did, and if his negligence in any one or more of these respects was the sole or direct proximate cause of the collision, then he would be solely responsible, and no other party could be held responsible."

The charge as a whole made it clear that the absence of the stop sign did not relieve either motorist of the duty to exercise due care on approaching and entering the intersection, and that Cherokee could not be held liable unless its negligence was a proximate cause of the collision. The jury was additionally instructed that Cherokee must be exonerated if it found that Blackmon's negligence was the sole cause of the collision, or if it found that the collision was caused by his negligence combining with the negligence of Hill or Ford. Since the substance of the requested instruction was covered by the charge, there was no error in refusing it. West's South Carolina Digest, Key 260.

Cherokee next argues that the court erred in charging plaintiff's request No. 3 because the instruction made Cherokee responsible for all of the consequences of Blackmon's negligence, and relieved plaintiff of the burden of proving causation by the greater weight of the evidence. We need not quote the instruction, nor decide whether these criticisms are valid, because neither of the objections now urged was called to the attention of the court when, pursuant to Section 10-1210, Code of 1962, the jury was excused upon completion of the charge. See numerous decisions footnoted under this Code section, which hold that an exception to the charge will not be considered on appeal unless the error was called to the attention of the trial judge.

The same disposition must be made of the challenge to an excerpt from the instructions on proximate cause, which *228 is the last question argued under this division of the brief. Any objection to the garbled language now complained of, which has the appearance of a slip of the tongue or reporter's error, was waived by failure to call it to the court's attention at the appropriate time.

VIII

Counsel agreed upon the record for appeal with one exception. Plaintiff declined to print the closing argument of James P. Mozingo, III, Esquire, plaintiff's leading counsel, which was insisted upon by Cherokee and Ford. By agreement, this question was submitted to Judge Gregory, who ordered printed one excerpt from the argument, which alone was objected to by Ford at the trial. He declined to order printed the remainder of the argument, to which no objection was made by either defendant. Only Cherokee appealed and now asserts that since the exceptions question the propriety of the argument, it should have been printed. Whether any objection to the argument has been waived, quoting from the brief, "is a question for this Court and not a question for the Circuit Court in settling the case." The argument has appeal, but is not supported by the record, which does not include an exception by Cheorkee to Counsel's argument. Ford's exception No. 68, which charges that the Court erred in not restraining the argument, ex mero motu, can lend no strength to Cherokee's appeal from the order settling the case, and we find no error as assigned.

IX

We next consider plaintiff's appeal from the order of the circuit court granting Ford's motion for judgment in its favor notwithstanding the verdict of the jury.

Plaintiff's case against Ford rests upon the claim that Ford was negligent in the design and placement of the gearshift lever, which, without an adequate protective ball or knob, created an unreasonable risk of injury to a passenger upon the happening of a collision; and that this risk was realized when the protective knob shattered on the impact of plaintiff's body and she was impaled on the spear-like lever. *229 Ford, while defending the suitability of its gearshift lever assembly at the time of the production and initial sale of the car, disclaims any duty to manufacture an automobile in which it is safe to have a collision, or to exercise care to minimize the collision connected hazards presented to occupants by the design of the passenger compartment. Ford urges that its only duty in this respect is to manufacture a product which is free of latent defects and reasonably fit for its intended use, and that such use does not include colliding with other vehicles or objects.

Rapid development in the law of products liability following the celebrated decision in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696 (1916), has resulted in general agreement upon the rule that a manufacturer is liable, under ordinary negligence principles, for a dangerously defective product which, while being put to an intended use, causes an accident and resulting injury to its user or to some third party. Ford concedes this principle, which we adopted in Salladin v. Tellis, 247 S.C. 267, 146 S.E. (2d) 875, and which has nigh universal support. Prosser on Torts, 661 (3d ed.)

On the other hand, there is scant authority on the specific issue which Ford tenders, i.e., whether the manufacturer of an automobile owes a duty in the design and composition of his product to avoid creating unreasonable risks of injury to passengers in a collision of the automobile with another object. Stated differently, does the manufacturer owe a duty of care to reasonably minimize the risk of death or serious injury to collision victims who, quite predictably, will upon impact be forcefully thrown against the interior of the car or outside of it?

Whether Ford owed such a duty is a question of law. If not, plaintiff has no case against Ford. If so, whether Ford breached this duty to plaintiff's injury is a question of fact, unless, of course the evidence is susceptible of only one reasonable inference.

*230 It is a matter of common knowledge that a high incidence of injury-producing motor vehicle collisions is a dread concomitant of travel upon our streets and highways, and that a significant proportion of all automobiles produced are involved in such smashups at sometime during their use. Thus, an automobile manufacturer knows with certainty that many users of his product will be involved in collisions, and that the incidence and extent of injury to them will frequently be determined by the placement, design and construction of such interior components as shafts, levers, knobs, handles and others. By ordinary negligence standards, a known risk of harm raises a duty of commensurate care. We perceive no reason in logic or law why an automobile manufacturer should be exempt from this duty.

The only two appellate court decisions in which this issue has been agitated and decided, which have come to our attention, reached opposed conclusions. Ford relies upon Evans v. General Motors Corp., 359 F. (2d) 822 (7th Cir.1966), in which plaintiff sued for the death of her intestate on the theory that the defendant was negligent in using an X frame in a 1961 Chevrolet station wagon, instead of the perimeter frame in general use, because, foreseeing the possibility of broadside collisions, the defendant owed a duty to provide side rails as reasonable protection against death or serious injury from such impacts. A divided court concluded that the complaint failed to state a cause of action. The rationale of the majority is fairly disclosed by the following excerpts from the opinion:

"A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle `more' safe where the danger to be avoided is obvious to all." (Citing Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E. (2d) 802, 804.) * * *

* * * * * *

"The intended purpose of an automobile does not include its participation in collisions with other objects, despite the *231 manufacturer's ability to foresee the possibility that such collisions may occur. * * *

"Defendant had a duty to test its frame only to ensure that it was reasonably fit for its intended purpose." 359 F. (2d) at 824 and 825.

It is apparent that the majority gave controlling weight to the concept of safety for the intended use or purpose as the limit of the defendant's obligation to exercise care. On the other hand, the dissent, applying elementary principles of the law of negligence, soundly, we think, found a duty to exercise care to furnish reasonable protection to collision victims in the statistical certainty that there would be such victims among the users of the cars produced and in the clear foreseeability of harm to such victims if care were not exercised.

In Larsen v. General Motors Corp., 391 F. (2d) 495 (8th Cir.), decided March 11, 1968, a unanimous court adopted the view of the dissenting judge in Evans. The plaintiff, driver of a 1963 Chevrolet Corvair, was injured in a head-on collision by a rearward thrust of the steering shaft. The complaint alleged that plaintiff's injury was caused or aggravated by the defendant's negligence in extending the steering shaft to a point in front of the forward surface of the front tires, thus greatly increasing the rearward thrust of the shaft upon impact. General Motors again disavowed any "duty of care in the design of an automobile to make it more safe to occupy in the event of a collision." Relying upon the Evans decision and upon several intervening district court cases which had followed the Evans line, the district court sustained this position and granted summary judgment. In a well-reasoned and documented opinion, which analyzes the decisions relied upon by General Motors and other decisions tending to support the view adopted by it, the court of appeals reversed. We are convinced of the soundness of the following excerpt from the opinion, which demonstrates Ford's duty of reasonable care to avoid unreasonable risk of injury to collision victims:

*232 "We think the `intended use' construction urged by General Motors is much too narrow and unrealistic. Where the manufacturer's negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called `second collision' of the passenger with the interior part of the automobile, all are foreseeable. Where the injuries or enhanced injuries are due to the manufacturer's failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable. * * *" Larsen v. General Motors Corp., 391 F. (2d) at 502.

The facts in Ford Motor Co. v. Zahn, 265 F. (2d) 729 (8th Cir.), are more nearly analogous to those in Evans, Larsen and here than those in any other appellate decision which has come to our attention. Plaintiff, while a passenger in a Ford car, was thrown forward by the driver's emergency application of brakes. His head slammed against the dashboard, and he lost an eye which, inferentially, was penetrated by a sharp protruding corner of an ashtray. The defect in the ashtray occurred in the manufacturing process rather than in design and, to this extent, the facts are distinguishable from those in Larsen and Evans. Nevertheless, the allowance of recovery was based upon the court's recognition of the manufacturer's duty to exercise care to avoid unreasonable risks of injury to passengers who should be thrown against the dashboard by deceleration of a car. The manufacturer's knowledge that emergency decelerations *233 are of frequent occurrence in highway travel, in short, the foreseeability of the risk, was pointed to as the basis of the duty. This is, of course, the rationale of Larsen, which we adopt.

We shall not rehash the other decisions, pro and con, which are reviewed in Evans and Larsen. None of them is on strictly analogous facts. However, we can not omit reference to the persuasive opinion by Judge J. Spencer Bell in Spruill v. Boyle-Midway, Inc., 308 F. (2d) 79 (4th Cir.1962). Although the product involved was poisonous furniture polish, which was ingested by an infant while his mother was temporarily out of the room, the cogent grounds of the court's rejection of the claim that the manufacturer was not liable because the product was not intended to be consumed are, in part, fully applicable here, quoting:

"We agree with the general principle but the application the defendants would have us make of it here is much too narrow. `Intended use' is but a convenient adaptation of the basic test of `reasonable foreseeability' framed to more specifically fit the factual situations out of which arise questions of a manufacturer's liability for negligence. `Intended use' is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.

"However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured. * * *" (Italics added.) 308 F. (2d) at 83-84.

We can add nothing to the force of Judge Bell's logic and will not attempt to do so. It is notable that the above quotation may be shaped to our facts by simply substituting the *234 word "highway" for the word "home" in the first sentence of the second paragraph.

X

Having resolved the legal question of Ford's duty to exercise care in plaintiff's favor, we now examine the sufficiency of the evidence to support the jury's factual finding that there was a breach of that duty. Of course, the evidence and all inferences to be drawn therefrom must be viewed in the light most favorable to plaintiff.

The 1949 Ford was equipped with a manual transmission. The gearshift lever was mounted on the right of the steering shaft below the wheel. It was a slender, cylindrical, steel rod about 12 inches in length, with a slight taper to a diameter of 5/16 of an inch at the end on which a plastic knob or ball was mounted. This rod protruded some two inches beyond the rim of the wheel and was pointed generally in the direction of a passenger on the right side of the front seat. In high or third gear the lever was pointed downward toward the seat. Without an adequate protective knob, the lever was quite capable of piercing the body of any person who might be thrown upon it, and the jury could reasonably have concluded that the rod presented an unreasonable risk of injury unless effectively guarded.

The end of the gearshift lever was covered by a knob or ball of a plastic material manufactured by Tennessee Eastman Company of Kingsport, Tennessee, labeled tennite butyrate, also referred to in the record as acetate butyrate. The ball was moulded by Ford in two hollow sections, the bottom section with a hole slightly smaller in diameter than the end of the lever. The two sections were glued together and the slightly heated ball was force-fitted over a series of annular groves around the end of the rod. This resulted in a firm, permanent attachment. The knob could not be removed without rupturing it.

The plastic material was available in a wide range of colors, including black. Ford chose to use white tennite *235 butyrate for the knobs in its 1949 model. Exposure to the ultraviolet rays of sunlight caused this material to deteriorate. Carbon, which is the coloring agent used to produce black tennite butyrate, is highly resistant to ultraviolet rays. Ford switched to black butyrate for the knobs in its 1950 model. After exposure to sunlight for an undetermined length of time, the greater the exposure the more rapid the deterioration, the white knobs became crazed. Hairline cracks which developed on the surface in this process destroyed the force distributing quality of the plastic knob and caused it to shatter easily on impact. After developing these cracks, a 1949 white ball was of no value as a protective guard but remained serviceable as a knob. The presence of the hairline cracks was apparent on visual inspection. However, their deteriorating effect would not necessarily be comprehended by a person of ordinary reason. The black 1950 balls never developed these cracks. Rigidly attached to the gearshift lever, they were not subject to wear, as are moving parts of machinery, and there is no evidence that the black knobs deteriorated with age or normal use.

When questioned about the expected life of the material furnished to Ford for the 1949 knobs, an Eastman expert testified: "That is a hard question to answer because it is dependent on the type of exposure, but, generally speaking, I think it would be expected to last six or eight years without any question. More if it had less exposure to ultraviolet." However, accompanying detailed specifications furnished to the users of this material by its producer was a statement of its general characteristics, including the following: "Articles moulded from this formula are generally commercially unaffected by 12 or more months of continuous outdoor exposure."

Ford knew that the white plastic from which the 1949 gearshift ball was moulded would deteriorate on exposure to the sun's rays, and counsel disclaims that the ball was attached to the lever as a safety device.^[4] Without regard to *236 the reason for affixing the ball, however, counsel argues that the burden was on plaintiff to prove that the assembly was "unreasonably dangerous at the time this automobile was first sold." Counsel urges that the absence of evidence "that this knob would have shattered if this impact had occurred in 1949, 1950 or subsequent thereto during the normal life expectancy of this plastic material," results in a failure of proof.

It is implicit in the verdict that the gearshift lever presented an unreasonable risk of injury if not adequately guarded. At the time of plaintiff's injury the knob on the Hill car continued to serve its functional purpose as a handhold, but it had become useless as a protective guard. It is inferable that the condition of the knob did not arise from ordinary wear and tear, but from an inherent weakness in the material of which Ford was aware when the selection was made. In the light of the insidious effect on this material of exposure to sunlight in the normal use of an automobile, it could reasonably be concluded that Ford should have foreseen that many thousands of the one million vehicles produced by it in 1949 would, in the course of time, be operated millions of miles with gearshift lever balls which, while yet serving adequately as handholds, would furnish no protection to an occupant who might be thrown against the gearshift lever. The jury could reasonably conclude that Ford's conduct, in manufacturing a needed safety device of a material which could not tolerate a frequently encountered aspect of the environment in which it would be employed, exposed many users of its product to unreasonably great risk of harm. Therefore, the issue of Ford's negligence was submissible under elementary common law principles, unless other considerations relied upon by Ford require a different conclusion.

Ford urges that the judgment in its favor should be affirmed because (1) there was no defect in the gearshift lever and knob when the automobile left the hands of the manufacturer; (2) Ford is not liable for an injury caused by *237 the deterioration of the knob after thirteen years' use; (3) Ford is not liable for an injury caused by deterioration of the ball which was obvious and known to the owner and user of the automobile; (4) Ford is not liable because the release of Blackmon by the verdict of the jury broke the chain of causation between any wrongful act of Ford and plaintiff's injuries.^[5]

(1) & (2)

In a products liability case against the manufacturer, plaintiff does, of course, have the burden of establishing that the defect complained of existed at the time the product was sold by the defendant. "There is no duty on a manufacturer to furnish a machine that will not wear out." Auld v. Sears, Roebuck & Co., 261 App. Div. 918, 25 N.Y.S. (2d) 491, aff'd, 288 N.Y. 515, 41 N.E. (2d) 927. We subscribe to the following statement of the law which is applicable to the facts of this case:

"If the chattel is in good condition when it is sold, the seller is not responsible when it undergoes subsequent changes, or wears out. The mere lapse of time since the sale by the defendant, during which there has been continued safe use of the product, is always relevant, as indicating that the seller was not responsible for the defect. There have been occasional cases in which, upon the particular facts, it has been held to be conclusive. It is, however, quite certain that neither long continued lapse of time nor changes in ownership will be sufficient in themselves to defeat recovery when there is clear evidence of an original defect in the thing sold." (Emphasis added.) Prosser on Torts, 667 (3d ed. 1964).

Lynch v. International Harvester Co. of Am