368 F.

2d 713

John Joseph MULL, Plaintiff-Appellant,

v.
FORD MOTOR COMPANY, Inc., Defendant-Appellee.
No. 7, Docket 30304.

United States Court of Appeals Second Circuit.

Argued Sept. 21, 1966.
Decided Nov. 9, 1966.

Lawrence Lauer, New York City, for plaintiff-appellant.

George J. Conway, New York City, for defendant-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and ANDERSON,
Circuit judges.
LUMBARD, Chief Judge:

The plaintiff, John Mull, appeals from a judgment of the United States District
Court for the Southern District of New York, entered December 13, 1965, for
the defendant, Ford Motor Company, upon a directed verdict after trial, in a
diversity negligence action, and from an internediate order entered August 6,
1962, also in favor of Ford Motor Company, dismissing the cause of action for
breach of warranty on the ground that appellant Mull was neither an ultimate
consumer nor a user of the vehicle that caused the accident. We find no error in
the decisions below, and affirm.

On Sunday morning, December 21, 1958, Mull was packing his car, which was
parked on Madison Avenue between 40th and 41st Streets in Manhattan. While
he was stationed at the rear of the car to arrange the trunk, he was struck by a
1958 Ford taxi cab, owned by the Colt Company, Inc.

As stipulated by both parties' attorneys in the pre-trial order,

'The said taxi cab on December 21, 1958 was operated by one Max Fermaglick,

in a sougherly direction on Madison Avenue approaching 41st Street. The pace

of traffic caused him to reduce the speed of the cab. The cab stalled.
Fermaglick got out of the cab and opened the hood and found he was unable to
correct the trouble. He closed the hood and returned to the cab and attempted to
move it to the curb by using the accelerator and starter of the cab, a process
known as 'bucking.' While Fermaglick was so engaged, the hood flew up in
front of the windshield, blocking his vision. Fermaglick did not stop the cab but
proceeded with his 'bucking' maneuver to bring the cab to the curb. As he got
near the curb, the cab struck the plaintiff pinning him between the rear of his
car where he was standing engaged in loading his car and the front of the cab.'
5

It was also stipulated that the taxi was manufactured by the Ford Motor
Company and delivered directly to the Colt Company, Inc., in New York City,
on September 2, 1958. It had been driven 35,000 miles at the time of the
accident.

Mull commenced this action against the driver, the Colt Company, Inc., other
related corporations, and their controlling shareholders,1 the King Ford Motors,
Inc. (the agency through which the taxi was purchased), and the Ford Motor
Company. In January 1963, the Colt Company and its related corporations and
shareholders conditionally settled with Mull for the sum of $100,000, and later,
the case against King Ford Motors, Inc. was discontinued. Ford Motor
Company was the only remaining defendant at the time of trial.

Evidence was offered to show that a proximate cause of the accident was a
defective 'detente spring' in the gear shift mechanism. At the end of the
plaintiff's evidence the court reserved decision on a motion to dismiss the
complaint. At the close of testimony, upon reviewing the pre-trial order and the
transcript of testimony, Judge Cooper directed a verdict for the defendant. We
affirm on the ground that the facts stipulated in the pre-trial order reveal that
the cab driver's negligence was an effective intervening and superseding cause
as a matter of law, breaking the causal chain, thus relieving Ford from liability
for its alleged negligence in design and manufacture. I would further affirm
Judge Edelstein's earlier order dismissing plaintiff's cause of action for breach
of warranty for the reasons stated in his opinion, Mull v. Colt Co., 31 F.R.D.
154, 168-174 (S.D.N.Y.1962).
I. The Negligence Action

The plaintiff is bound by the statement of facts in the pre-trial order, which was
stipulated to by his attorney.

We are reinforced in this conclusion here because the critical sentences

contained in the stipulation came verbatim from plaintiff's own pre-trial
memorandum,2 and closely parallel statements in plaintiff's amended
complaint.3

10

It is a primary purpose of pre-trial stipulations, and pre-trial procedures in

general, to simplify the issues of fact and to eliminate those not relied upon.
Carefully drawn and negotiated stipulations avoid confusion, and save time and
expense for the parties, as well as for the courts. Because of this, stipulations
ought to be binding, not only to do justice beyween the parties, but to encourage
their effective use. No request was made before Judge Cooper to modify this
stipulation at trial. We must decide the questions on appeal on the basis of the
facts as stated in the stipulation.

11

The question remains, whether, as a matter of law, the facts set forth in the
stipulation should constitute such intervening negligence as to break the causal
chain and justify taking the case from the jury.

12

The plaintiff assumes, and the defendant does not dispute, that the decision
whether or not to direct a verdict is governed by the New York standard as to
the sufficiency of evidence,4 see N.Y.C.P.L.R. Rule 4401; Blum v. Fresh
Grown Preserve Corp., 292 N.Y. 241, 54 N.E.2d 809 (1944), and we proceed
on that basis.

13

Viewing the inferences from the stipulated facts in the light most favorable to
the non-moving party, the district court properly directed a verdict for the
defendant. By no rational process could the trier of fact find in favor of plaintiff
Mull. The inferences to be drawn from the stipulated facts are clear. Although
Fermaglick's action followed the failure of the taxi cab, and in that sense was
dependent upon the alleged negligence of Ford, his negligence was so gross as
to exonerate Ford, for when '* * * the hood flew up in front of the windshield,
blocking his vision, Fermaglick did not stop the cab but proceeded with his
'bucking' maneuver to bring the cab to the curb.' See McLaughlin v. Mine
Safety Appliances Co., 11 N.Y.2d 62, 226 N.Y.S.2d 407, 181 N.E.2d 430
(1962). Ford's negligence, if any, could no longer be said to be a generating
force.

14

Where a new force 'intervenes' to bring about a result that defendant's

negligence would not otherwise have produced, the defendant is generally held
for that result only where the intervening force was foreseeable. See Harper &
James, The Law of Torts 20.5 (1956); Prosser, Law of Torts 51 (3d ed. 1964).

Neither the precise hazard nor the exact consequences need be foreseen. A
judgment must be made as to whether the intervening act is 'within the risk'
reasonably created by the defendant's negligence.
15

Once the taxi had stalled, it is foreseeable that a car behind might collide with
it, and the taxi might be propelled into the plaintiff. It might not be
unforeseeable, once the taxi had stalled and its gears had jammed, that the
driver might attempt to 'buck' it to the curb, to remove it from the traffic lane
even though plaintiff was in the street in front of him. But it is not foreseeable
that once the hood had popped up, completely obscuring the driver's vision, that
he would blindly continue to 'buck' the cab. This is not within the risk
reasonably to be perceived by the defendant Ford, and we find upon the facts as
stipulated that Fermaglick's negligence as a matter of law was 'so fross as to
supersede the negligence of the defendant and insulate it from liability.'
McLaughlin v. Mine Safety Appliances Co., supra at 71, 181 N.E.2d at 435,
226 N.Y.S.2d at 414. The jury could not reasonably have found that Ford's
alleged negligence was a proximate cause of plaintiff's injury, and therefore the
directed verdict as to the cuase of action in negligence was proper.
II. The Alleged Breach of Warranty

16

Plaintiff's second cause of action was based upon breach of implied warranty.
We are in agreement that it was properly dismissed. Judge Waterman and Judge
Anderson reach this conclusion for reasons stated in Judge Anderson's
concurring opinion. In my view New York law would not permit recovery for
breach of implied warranty by a mere bystander. What follows is an expression
of my own view.

17

We must look to the law of New York as controlling on this question. It is by

no means certain that plaintiff's failure to prove causation for negligence also
requires a dismissal on this cause of action. There is some reason to believe that
there is no room for a 'foreseeability' analysis in such 'strict tort liability'5
actions, since liability is based on considerations of social policy and not on
fault.6 The effect of intervening negligence has seldom been at issue because,
until the recent assault on privity in manufacturers' strict liability cases, fact
situations have rerely provided an opportunity for third party 'intervenors.'

18

I agree, however, with the reasons stated in Judge Edelstein's opinion, Mull v.
Colt, 31 F.R.D. 154, 168-174 (S.D.N.Y.1962), for dismissing the plaintiff's
claim on the ground that Mull was neither an ultimate consumer nor a user of
the vehicle that struck him. No New York cases have gone beyond these

limitations. Indeed, there is much language in recent cases which indicates that
considerable caution is being exercised by the New York Courts regarding the
expansion of warranty concepts. In Greenberg v. lorenz, 9 N.Y.2d 195, 200,
213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 776, (1961), it was stated that the courts
'should be cautious to take one step at a time.' See also Randy Knitwear v.
American Cyanamid, 11 N.Y.2d 5, 16, 226 N.Y.S.2d 363, 371, 181 N.E.2d
399, 404 (1962) (concurring opinion). in Goldberg v. Kollsman Instrument
Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963), the Court of
Appeals declined to hold a manufacturer of an allegedly defective component
part simply becuase adequate protection was provided by holding more
immediate parties. Whild the Goldberg limitation has been rationalized as
founded upon the comparative 'ability to pay' of the respective defendants, it
any the other appellate court decisions, see also Berzon v. Don Allen Motors,
Inc., 23 A.D.2d 530, 256 N.Y.S.2d 643 (4th Dep't 1965); Vulpis v. City Line
Lumber Co., 19 A.D.2d 947, 245 N.Y.S.2d 325 (2d Dep't 1963), affirming
without opinion 39 Misc.2d 842, 241 N.Y.S.2d 920 (Sup.Ct.), cast doubt upon
the extent to which the New York courts would go. We should not go beyond
present New York case law to allow this implied warranty action when there is
no assurance that the New York courts would do so, see Bernhardt v.
Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1955); West v.
American Telephone & Telegraph Co., 311 U.S. 223, 236-238, 61 S.Ct. 179, 85
L.Ed. 139 (1940); also Bernhardt v. Polygraphic Co., supra, at 205-12
(Frankfurther, J., concurring); Hart & Wechsler, The Federal Courts and the
Federal System, 628-630 (1953).
19

Affirmed.
ANDERSON, Circuit Judge (concurring):

20

I concur in the result reached by Chief Judge LUMBARD but would limit the
decision to the determination, as a matter of law, that Fermaglick's negligence
was the sole proximate csuse of the injury, without basing it also upon the
nonexistence of a right in one who is not a purchaser or user of the
instrumentality to recover on an implied warranty. While the review of past
decisions of the New York courts on the subject is unexceptionable, this is a
changing area of the law and it is unnecessary for this court to enter it in this
case. For Ford to be liable here its act or omission must have been a legal cause
of the plaintiff's injury. If there was any negligence by Ford, it was entirely
superseded by the negligence of Fermaglick, and the harm to the plaintiff could
not under the circumstances be brought within the scope of foreseeability.
Under the implied warranty approach it is necessary to ascertain whether or not
any non-negligent act by Ford was a legal cause of plaintiff's injury, which may

not be measured precisely the same way as legal cause in negligence liability;
but whether the terms used to describe the means for determining legal cause
are foreseeability or substantial factor or enterprise cost allocation, all of these
concepts are devides for fixing the point beyond which a particular injury is
not, in the eyes of the law, attributable to, or within the risk of, a particular
event or activity. In my opinion, on the facts of this case, any act by Ford,
whether negligent or non-negligent, was clearly beyond that point. But it, for
example, a non-negligent defect in the steering mechanism of Fermaglick's cab
caused the cab suddenly to swerve onto the sidewald and hit the plaintiff who
was standing there, then this court would have to decide whether plaintiff's lack
of a purchaser or user relationship to Ford would bar his recovery under the
applicable state law. Judge LUMBARD answers this in the affirmative but that
is not the case which is before us.
WATERMAN, Circuit Judge (concurring):
21

I concur in the result reached by Chief Judge LUMBARD and in that portion of
his opinion in which he points out that, as a matter of law, the cab driver's
negligence was an effective intervening and superseding cause of the accident.

22

Because of the present fluid and uncertain condition of the law relative to the
liability to bystanders of a manufacturer who markets a defective product I
prefer Judge ANDERSON's approach to the issue of whether plaintiff could
maintain, on the facts present here, an action for breach by defendant of an
implied warranty, and I agree with him that on these facts we need not reach
the issue. Therefore, I concur in his entire opinion.

The Colt Company, Inc. was one of approximately 100 corporations owned and
managed by various members of the Ackerman family, and Samuel and Marion
Goodman. Each corporation had two taxi cabs registered to its corporate name,
and each carried the minimum insurance allowable by statute. Judge Edelstein,
on the basis of plaintiff's amended complaint, ruled that they were all proper
parties, allowing plaintiff to pierce the corporate veil, 31 F.R.D. 154
(S.D.N.Y.1962)

'While Fermaglick was so engaged, the hood flew up in front of the windshield,
blocking his vision. Fermaglick did not stop the cab but proceeded with his
'bucking' maneuver(s) to bring the cab to the curb.' Plaintiff's pre-trial
memorandum, Record p. 613

'SEVENTEEN: * * * That while the said defendant, Fermaglick, was so

engaged in attempting to move the taxi cab, the front hood of the said taxi cab
flew up, opening in front of the windshield of said taxi cab and blocking the
view of the said defendant, Fermaglick. That as a result thereof of his view
being blocked and his not being able to observe the plaintiff standing in the
said street alongside the said curb, the said defendant, Fermaglick, caused and
allowed the said taxi cab to strike the said plaintiff * * *.' Plaintiff's amended
complaint, Record pp. 602-03
4

We shall assume, as the plaintiff does, without deciding, that the state standard
applies. The Supreme Court has twice declined to decide whether state or
federal standards of sufficiency of evidence are controlling in diversity cases,
see Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964);
Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3
L.Ed.2d 935 (1959); as has this Circuit on recent occasions, see, hooks v. New
York Central R.R., 327 F.2d 259, 261 n. 2 (1964); Jacobs v. Great Atlantic &
Pacific Tea Co., 324 F.2d 50 (1963); Evans v. S. J. Groves & Sons Co., 315
F.2d 335, 342 esp. n. 2 (1963); also O'Connor v. Pennsylvania RR. Co., 308
F.2d 911 (1962). Compare Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S.
525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) with Palmer v. Hoffman, 318 U.S.
109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Sampson v. Channell, 110 F.2d 754,
128 A.L.R. 394 (1 Cir.), cert. denied, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed.
1415 (1940)
The majority of circuits have held that the Erie doctrine is 'subservient to * * *
the kind of jury trial in federal courts that is preserved by the Seventh
Amendment,' Reuter v. Eastern Air Lines, 226 F.2d 443, 445 (5 Cir. 1955), and
that the federal standard should be applied where the issue is the sufficiency of
the evidence required to take the case from the jury, see, e.g., Ettelson v.
Metropolitan Life Ins. Co., 137 F.2d 62 (3 Cir. 1943); Davis Frozen Foods v.
Norfolk Southern Ry., 204 F.2d 839 (4 Cir. 1953); Reuter v. Eastern Air Lines,
supra (5 Cir.); Curry v. Pyramid Life Ins. Co., 271 F.2d 1 (8 Cir. 1959); Phipps
v. N.V. Nederlandsche Amerikaansche S.M., 259 F.2d 143 (9 Cir. 1958);
Diederich v. American News Co., 128 F.2d 144 (10 Cir. 1942), and their
progeny. Contra: Trivette v. New York Life Ins. Co., 283 F.2d 441 (6 Cir.
1960). The Eighth Circuit has more recently left the question open however,
see, e.g., Jiffy Markets v. Vogel, 340 F.2d 495, 498 (1965); Hanson v. Ford
Motor Co., 278 F.2d 586 (1960), without mention of the Curry case, supra.

Goldberg v. Kollsman Instrument Corp., 12 N.Y. 432, 437, 240 N.Y.S.2d 592,
595, 191 N.E.2d 81, 83 (1963) (Desmond, Ch. J.) relying upon language in
Greenman v. Yuba Power Products, Inc., 59 Cal.2d 67, 27 Cal.Rptr. 697, 337
P.2d 897 (1963) (Traynor, Ch. J.), and describing 'strict tort liability' as 'surely
a more accurate phrase.'

It is arguable that where no unreasonable act is required in order to affix

liability, the ground for restricting liability to the foreseeable consequences of
the act disappears, or at least in the event that 'foreseeability' is an operative test
where liability is not based on fault, it may be differently applied, see, harper &
James, supra, 20.5(9)