Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d. Foley, J.A.D. (dissenting).
Plaintiff appeals from a Superior Court, Law Division, judgment of involuntary dismissal, with prejudice, entered in defendant's favor at the close plaintiff's case.
Defendant manufactures abrasive discs, and among its customers is the Mahwah, N.J. plant of the Ford Motor Company, plaintiff's employer. Plaintiff was injured when a disc he was using in a grinding operation on the Ford assembly line broke and hit him. He sued in two counts. The first charged negligence in manufacturing the disc; the second alleged breach of warranty, both express and implied (merchantability and fitness for use). Defendant's answer denied these claims and set up the defenses of contributory negligence, assumption of risk, lack of privity of contract, lack of consideration and no warranty.
Plaintiff had worked for Ford for some 17 years as a mechanic and body finisher on the production line, and he was fully familiar with the tools used in these operations. On the day of the accident he was acting as relief man for the regular crew of grinders and solderers. One of the grinders asked to be relieved. He had been smoothing down the brass weld where the windshield and door post of the
skeleton automobile body come together, and for this purpose was using a grinding machine run by an air-operated motor rotating at 3,600 revolutions a minute a vertical shaft to which one of defendant's abrasive discs was attached. This operation is known as "snagging," described by one witness as exposing the abrasive to "a very punishing type of treatment where you would encounter sharp edges and abrupt corners." Plaintiff testified that "As I was grinding this braze with this disc and putting pressure on it, it snapped in half, striking me right here [in the lower mid-abdomen]." The broken disc was not produced at the trial, nor had anyone examined it or checked to see what had caused the break.
The disc plaintiff was using was defendant's type C, 24-grit (the coarseness of the abrasive), fibre-backed, flexible grinding disc, 9" in diameter. The C-type discs were described in defendant's list price catalogue as follows:
"3M DISCS TYPE 'C' -- GREEN BACK
Are stronger, sharper, and longer-lived than ever before available -- anywhere. This construction is best all-purpose disc -- for edge sanding, flat sanding and solder sanding or oil filling operations. It's 'shape controlled' to resist effects of humidity and temperature.
Aluminum Oxide Mineral, Heavy All-Fibre Backing, Closed Coat, Resinbonded, 150-50, 36, 24, 16"
Plaintiff testified that during his years in Ford's employ grinding discs often broke: "We got hit many a time, but never thought nothing of it. A lot of fellows get hurt." Part of his job was to supply the men on the production line with grinding discs, and he would bring them from the supply room in batches of 100.
Plaintiff called the Mahwah plant purchasing agent, Schumann, as his witness. He testified that the engineering department, after working with the manufacturers, would determine what production tools and equipment were to be purchased. Upon receipt of the necessary requisition, his department would then put through the order. He said that the plant safety engineers coordinated with the production engineers in deciding whether a particular item was reasonably
safe for use. The plant had purchased 200,000 to 300,000 of defendant's 9", 24-grit grinding discs prior to the accident, and an additional 50,000 to 100,000 after the occurrence. Ford then changed to another manufacturer and type of disc, on recommendation of its engineering department.
Plaintiff's only other witness was Gearhart, manager of the process engineering department. Counsel put a short hypothetical question to the witness, asking him to assume that plaintiff had been performing the grinding operation just described, and then inquired whether he had an opinion as to what caused the "wheel" to break. (Obviously, the reference was to the grinding disc, as appears soon after in the record.) The answer was, "The wheel itself must have had a defect." The basis for his opinion was "The experience I've had with this type of equipment, and that it is not related to the tool that is driving the wheel. Any relationship is with the disc itself, rather than the machine." No further explanation or detailing of this "experience" was volunteered or elicited. Gearhart said he had examined the "specifications" for the C-24 disc, indicating these were the list price description, quoted above, and a page of pictures from the catalogue showing the machine being used in different kinds of grinding operations. Aside from these, he said, there were no other representations made to the Ford Company.
Gearhart testified that the company had tested different discs, including defendant's, "for durability and effectiveness." In answer to the trial judge's inquiry whether defendant had made any representation with regard to the number of revolutions at which it would be safe to operate the disc, Gearhart answered that "we do have information given to us by the vendor on the recommended speeds. The speed of this particular disc I had no occasion to know in particular, nor do I retain this information. * * *."
On cross-examination Gearhart said that the engineering department had selected defendant's 24-grit disc as the best
there was in the features they were looking for. The tests it had run were not conducted in a laboratory but rather directly on the production line, for durability and cost comparison. Asked whether the discs had ever snagged and broken, Gearhart said he had never seen or heard of this happening. Although it was the engineering group that selected and recommended for purchase the discs to be used, he was not entirely clear as to whether the safety engineers played a part in the selection. He said that discs used for the kind of rough grinding plaintiff was doing would last for about five body units.
Plaintiff having rested, defendant moved for judgment of involuntary dismissal on both the negligence and warranty aspects of the case. These were separately argued and the motion granted. This appeal followed.
On a motion for dismissal we must, of course, take as true all evidence which supports plaintiff's view and give him the benefit of all legitimate inferences which may be drawn therefrom.
We first treat of plaintiff's claim of negligent manufacture. This was spelled out in the first count of the complaint, wherein plaintiff alleged that defendant failed to use proper materials in manufacturing the disc, failed to use them in proper proportion, did not properly treat the disc, failed to provide a safety factor, failed to inspect and test the disc to ascertain whether it conformed to minimum standards and, finally, failed to mark the disc with the speed at which it could safely be operated, contrary to good practice in the trade. Except for ...