Leonard, Allcorn and Crahay. The opinion of the court was delivered by Leonard, P.J.A.D. Allcorn, J.A.D. (dissenting).
This is an automobile products liability case. Following a jury trial, plaintiff Thomas Moraca appeals from a judgment of no cause of action in favor of defendants and against him.
On November 27, 1967 plaintiff, on behalf of a corporation controlled by him, purchased a new 1968 Lincoln Continental 4-door sedan from defendant Merlin Motor Co. (Merlin). On February 5, 1968 the vehicle was returned to Merlin for a 6,000 mile checkup, although the mileage thereon was only 4,370 miles. Plaintiff experienced no mechanical trouble from the time he took delivery of the automobile until May 28, 1968, the day of the accident here involved. At that time the car had been driven approximately 11,000 miles.
Approximately 11 A.M. on the day in question, plaintiff left his place of business in Cherry Hill, New Jersey, with the intention of driving to Ocean City, Maryland, a distance of about 150 miles. He first stopped at a gas station immediately adjacent to his office. The station attendant, finding that the power steering fluid was very low and that no fluid showed on the dip-stick, added approximately one-third of a quart of transmission oil to the power-steering reservoir. Plaintiff then proceeded south on the New Jersey Turnpike, crossed into Delaware and continued in the same direction on Route 13.
At the scene of the accident, Route 13 curves gradually to the right. When plaintiff entered this curve, he estimated he was traveling 45 miles per hour in the right lane of the dual highway. The speed limit at the location was 60 M.P.H. It was raining rather heavily at the time.
Just after entering the curve, plaintiff heard a noise, which he described as a "gink" in the front end of the vehicle. Immediately following, the car began to slide to the right. The front wheels felt as if they were locked and the steering wheel would not respond to plaintiff's efforts. It would not turn even though plaintiff exerted force with both hands. The car traversed the 12 foot right shoulder and into a contiguous field, where it continued in a side-slide down the highway for about 42 feet. It struck a tree located 3 feet from the outside edge of the shoulder. The front portion of the vehicle came to rest against the tree and the remaining part about 30 feet away.
Plaintiff testified that he took his foot off the accelerator when the slide started and did not thereafter increase his speed. He also stated that he did not think he had his foot on the brake as he was attempting to turn the locked steering wheel.
As a result of the accident plaintiff suffered serious personal injuries.
Sometime after the accident, the two sections of the Continental were returned to this state and following notice to both defendants, the power steering system was disassembled in the presence of representatives and experts of all parties.
At trial plaintiff produced two experts. They substantially agreed in their testimony that there existed two manufacturing defects in the power steering sector shaft of plaintiff's automobile. The first was a rough area along one side of the bearing surface on the lower portion of the shaft, where it would come into contact with the seal. The second was that the sector shaft itself was bent. Both opined that the first would abrade the seal, causing it to eventually fail, resulting in loss of power steering fluid. The second would
cause the shaft to rotate in an eccentric fashion, in turn causing the lip of the seal to be stretched so that it would allow power steering fluid to spurt out. Additionally, the first expert testified that as a result of the loss of oil level, the power steering unit would instantaneously lock, making it impossible for a person of ordinary strength to control it. It was his further opinion that the two described defects, with the accompanying loss of oil, were the cause of the instant malfunction, and of the resultant accident.
Defendant in turn offered three experts who contradicted plaintiff's witnesses. They denied the loss or leakage of power steering fluid or damage to the seals. In their opinion the bend in the sector shaft was due to the accident impact.
At the close of the trial, plaintiff submitted to the court the following written requests to charge:
Nor is the plaintiff required to establish the specific defect that existed in the product. Rather, in order to recover for breach of warranty, the plaintiff must present evidence from which it is reasonable to infer or conclude that more probably than not, the harmful event ensued from some defcet in the product, whether the defect is identifiable or not, and that the defect arose out of the design or manufacture of the product or while it was in ...