Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.
Defendant General Motors Corporation appeals from a judgment in favor of plaintiffs in the aggregate sum of $149,550 for damages for personal injuries and wrongful death attributed by them to an alleged defect in the steering wheel assembly of an automobile manufactured by defendant which overturned while being driven by the decedent Myron Jastremski on the New York Thruway in the early morning of July 18, 1964. The family had left Jersey City on a vacation trip to Canada late in the evening of July 17, several hours before. Decedent's wife and son were passengers in the car and sustained relatively slight injuries. His own injuries rendered him a quadriplegic, and he died in March 1965.
The factual theory of the defense was that there was no defect in the car when it left the manufacturer's plant but that the decedent lost control of the vehicle either through excessive speed in light of the alleged condition of the roadway, weariness because of lack of sleep, or driver-error when he inadvertently took an exit ramp and then tried to steer back onto the highway.
The vehicle had been purchased new on May 8, 1964 and the odometer read 2,051 miles at the time of the accident. There was evidence that the car was in good condition prior to the accident. It had had routine servicing by the dealer the day the trip began.
Plaintiffs' case for the existence of a manufacturing defect in the vehicle rested on the testimony of one Jesse Fisher, who qualified as an expert on automobile mechanics, being a licensed teacher of automobile mechanics. After the accident he examined the steering mechanism of the vehicle where connected to the left front wheel. He found that one of the three rivets in the left front upper suspension ball stud socket was broken. He concluded the rivet had been
broken for some time before the accident because the broken ends were polished, indicating friction when the ends rubbed together upon road vibration. He attributed the break in the rivet to looseness in its original installation. The rivet break over a period of time caused enlargement of the socket opening, eventually causing the ball stud to slip out. When this happened the left front wheel folded under, and the rapidly moving car was wrenched from the driver's control and overturned. Defendant submitted expert testimony purporting to refute that of Fisher as to the explanation of the break in the rivet and to negate any possibility of the ball stud passing from the socket prior to the accident. Its theory was that the break in the rivet occurred as a result of the accident rather than vice versa.
Defendant urges error in the court's admission, over objection, of testimony by the witness Fill, decedent's brother-in-law, of a statement allegedly made to him by decedent at the hospital 22 hours after the accident. The testimony was first taken out of the presence of the jury for a preliminary determination by the trial judge as to competency under Evidence Rule 63(32), which reads:
Subject to Rule 64, in a civil proceeding, a statement made by a person unavailable as a witness because of his death is admissible if the statement was made in good faith, upon the personal knowledge of the declarant, and there is a probability from the circumstances that the statement is trustworthy.
The testimony in question was:
A. I asked Myron [decedent] what ...