Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
This is a products liability case involving a Yamaha motorcycle, in the operation of which the infant plaintiff was injured. The suit is against the manufacturer, the importer and the dealer which ultimately sold the cycle to plaintiff. Liability is asserted on the theories of negligence, strict liability in tort and breach of warranty. Plaintiff father joined in the action for his damages per quod.
At the close of all the proofs, on motion of defendants under R. 4:40-1, judgment was entered by the trial judge in favor of all defendants. On their appeal from that judgment, plaintiffs argue that (1) it was error to take the case from the jury, and (2) the trial court erred in excluding certain evidence.
In passing upon a defendant's motion for judgment in his favor, made at the close of all the proofs under R. 4:40-1, the test to be applied by the trial judge is whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor of the plaintiff. If, accepting as true all the evidence which supports the position of the party opposing the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Dolson v. Anastasia , 55 N.J. 2, 5 (1969).
So guided, we note that infant plaintiff Steven E. Sabloff purchased the subject motorcycle, an 80 C.C. Yamaha motorcycle, from defendant Harley-Davidson of Essex on Friday, August 13, 1965, two days before he became 18 years old. The cycle had been operated only 56 miles, purportedly, at the time of purchase, and Mr. Steele, the seller's president,
gave Steven, the purchaser, a "new bike" warranty. Steven drove the motorcycle home that day, experiencing only a little stalling problem which quickly cleared up.
Steven had motorcycle experience prior to the purchase of this machine. In the summer of 1964 he learned how to ride and operate a motorcycle by using a friend's Honda on farm property in Livingston, operating it on the farm about three days a month throughout a whole year and thereby becoming "able to handle the motorcycle pretty well." About the end of July 1965 Steven purchased his own motorcycle, a Yamaha 55 C.C., and experienced no difficulty in operating it without any accident or trouble. But the need for routine servicing led him to defendant dealer's shop and the purchase of the motorcycle in issue, the Yamaha 80 C.C. He had a "learner's permit" at the time of this purchase.
On Saturday, the day after the purchase, plaintiff rode the motorcycle another 50 miles and had no trouble with it.
On the following Sunday evening plaintiff drove around the area, stopping at a friend's house, at Livingston Center and at Livingston High School. At about 8:50 P.M., on this August 15, 1965 Sunday, plaintiff and Larry Bagoon, a licensed driver who was on his own motorcycle, rode out Memorial Park Drive and then right on South Livingston Avenue. This blacktopped road was dry and traffic was light. The weather was clear. Steven testified that he was feeling fine. They were travelling at about 25 miles an hour, with Larry about 15 feet behind plaintiff. Suddenly, the front wheel of the motorcycle stopped turning, the cycle went out of control, veered to the right and skidded about 10 or 15 feet before crashing into a parked car, causing injury to plaintiff. Steven testified that he had not touched the brake and had no reason for wanting to stop.
Thomas J. Nolan, Jr., a Livingston police officer at the time of the accident, testified that he was in a police patrol car and came to the scene of the accident at 9:13 P.M., "within a minute or two, possibly," after it had occurred. He found plaintiff on the street pavement and asked him
what had happened. Plaintiff told him "they were doing approximately 25 to 30 miles an hour and the front wheel, the front tire of the motorcycle apparently locked on him and he struck -- he lost control of the motorcycle and struck a parked car." The motorcycle was in the street at the scene of the accident and unchanged between the time of the accident and the time the officer saw it. The officer "noticed that the front fender (of the motorcycle) had a dent in it and that the front wheel would not move, as I was told by Mr. Sabloff." (Emphasis added). The officer explained that he meant, the front wheel "would not rotate." He saw nothing that was preventing it from rotating, "such as a spoke broken or a fender or anything like that." He observed that the hand brake had the lever "in the raised position, that is disengaged." The officer stated that the speed limit in that area was 40 miles an hour. The officer observed no skid marks on the highway.
Larry Bagoon's deposition was read, since he was unavailable. He confirmed that the wheel would not rotate. So, too, did Jeffrey Sabloff, plaintiff's brother, who examined the motorcycle later that night.
Jesse Fisher testified as an expert witness on behalf of plaintiffs. Although his qualifications as an auto repair man showed a marked absence of expertise as far as motorcycles were concerned, the trial judge permitted him to testify to his opinion, "based on whatever factual data may be supplied to him." The trial judge remarked, however, "the probative value I will leave for the jury." (Granting defendants' motions prevented the jury's appraising the "probative value" of Fisher's expert testimony.)
Fisher had no opportunity to see the wheel while it was still on the motorcycle. When he observed it, the wheel had been removed from the fork, thus preventing his determining "the side play that this wheel had at the time of the accident." Fisher testified as to this aspect, "If it had excessive side play prior to the accident, it could have locked the wheel by twisting and forcing the brake to become applied."
Fisher actually reassembled the brake assembly in his ...