Cardozo, J.

The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was *385thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N. Y. 78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. “The defendant’s negligence,” it was said, “put human life in imminent danger.” A poison falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall *386some of them will he helpful. Loop v. Litchfield (42 N. Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that thti manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has been criticised (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.], § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, hut had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.], § 134).

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith (89 N. Y. 470). The defendant, a contractor, built a scaffold for a painter. The painter’s servants were injured. The contractor was held liable: He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to he used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co. (195 N. Y. 478, 480). The defendant *387manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. W e held that the manufacturer was liable. We said that the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.” It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by Cullen, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

*388 Devlin v. Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. B. [11 Q. B. D.] 503). We find in the opinion of Brett, M. B., afterwards Lord Esher (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: “Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.” He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once * * * before a reasonable opportunity for discovering any defect which might exist,” and that the thing supplied is of such a nature “that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.” On the other hand, he would exclude a case “in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not; or whether they would be used before there would probably be means of observing any defect,” or where the goods are of such a nature that “a want of care or skill as to their condition or the manner 'of supplying them would not probably *389produce danger of injury to person or property.” What was said by Lord Esher in that case did not command the full assent of his associates. His opinion has been criticised “as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them” (Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. [N. S.] 341). It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles, with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will housed by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will he shared by others than the buyer. Such knowledge may often be *390inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence [3d ed.], 50, 51, 51; Wharton on Negligence [2d ed.], § 134; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Sweet v. Perkins, 196 N. Y. 482; Hayes v. Hyde Park, 153 Mass. 511, 516). We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant’s liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This *391automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) that an automobile is not within the rule of Thomas v. Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky (Olds Motor Works v. Shaffer, 145 Ky. 616). The earlier cases are summarized by Judge Sanborn in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865). Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled, the difference is rather in the applica*392tion of the principle than in the principle itself. Judge Sanborn says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result (120 Fed. Rep. 865, at p. 867). We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. (See the trenchant criticism in Bohlen, supra, at p. 351). Indeed, Judge Sanborn concedes that his view is not to be reconciled with our decision in Devlin v. Smith (supra). The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom v. Wright (10 M. & W. 109) is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord Esher points out in Heaven v. Pender (supra, at p. 513) that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff’s main reliance. (See the criticism of Winterbottom v. Wright, in Bohlen, supra, at pp. 281, 283). At all events, in Heaven v. Pender (supra) the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the shipowner. In Elliott v. Hall (15 Q. B. D. 315) the defendant sent out a defective truck laden with goods which he had sold. The buyer’s servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty “not to he guilty of negligence with regard to the state and condition of the truck.” There seems to have been a *393return to the doctrine of Winterbottom v. Wright in Earl v. Lubbock (L. B. [1905] 1 K. B. 253). In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White v. Steadman, L. R. [1913], 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable not merely to his customer but also to another occupant of the carriage, and Thomas v. Winchester was cited and followed (White v. Steadman, supra, at pp. 348, 349). It was again cited and followed in Dominion Natural Gas Co. v. Collins (L. R. [1909] A. C. 640, 646). From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable care (Caledonian Ry. Co. v. Mulholland, L. R. [1898] A. C. 216, 227; Indermaurv. Dames, L. R. [1 C. P.] 274). That at bottom is the underlying principle of Devlin v. Smith. The contractor who builds the scaffold invites the owner’s workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it. The invitation is addressed in the one case to determinate persons and in the other to an indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in the absence of fraud, to B’s guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he *394omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty (Junhermann v. Tilyou R. Co., 213 N. Y. 404, and cases there cited).

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that “the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests (Richmond & Danville R. R. Co. v. Elliott, 149 U. S. 266, 272). Under the charge of the trial judge nothing more was *395required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution. There is little analogy between this case and Carlson v. Phoenix Bridge Co. (132 N. Y. 273), where the defendant bought a tool for a servant’s use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant’s situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed with costs.

Willard Bartlett, Ch. J. (dissenting).

The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Michigan, a reputable manufacturer of automobile wheels which had furnished the defendant with eighty thousand wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein and made no such tests itself. The present suit is an action for negligence brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident and was moving at a speed of only eight miles an hour. There was *396no allegation or proof of any actual knowledge of the defect on the part of the defendant or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and "that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the 'defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasom able inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and accurate of American law writers, *397states the general rule thus: “The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (2 Cooley on Torts [3d ed.], I486.)

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom v. Wright (10 Meeson & Welsby, 109), which was an action by the driver of a stage coach against a contractor who had agreed with the postmaster-general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster-general alone. i£If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas v. Winchester (6 N. Y. 397, 408), which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labeled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract and the plaintiff for whom the prescription was put up was poisoned by the *398belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying: “If A. build a wagon and sell it to B., who sells it to C. and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. * * * So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. ”

In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff “under the doctrine of Thomas v. Winchester (supra), and similar cases based upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger or to take reasonable care to present the article sold from proving dangerous when subjected only to customary usage.” The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge *399Hiscock, writing for the court in Statler v. Ray Manufacturing Co. (195 N. Y. 478, 482), where he said that “in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.” In that case the injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting an appliance liable to become dangerous in the course of ordinary usage.

The case of Devlin v. Smith (89 N. Y. 470) is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In that case the builder of a scaffold ninety feet high which was erected for the purpose of enabling painters to stand upon it, was held to be liable to the administratrix of a painter who fell therefrom and was killed, being at the time in the employ of the person for whom the scaffold was built. It is said that the scaffold if properly constructed was not inherently dangerous; and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself but made so only in consequence of negligent construction. Whatever logical force there may be in this view it seems to me clear from the language of Judge Rapallo, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure; and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v. Winchester.

I do not see how we can uphold the judgment in the *400present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom v. Wright (supra), and the illustration quoted from the opinion of Chief Judge Ruggles in Thomas v. Winchester (supra) assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight iniles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge Sanborn of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865) in an opinion which reviews all the leading American and English decisions on the subject up to the time when it was rendered (1903). I have already discussed the leading New York cases, but as to the rest I feel that I can add nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge Sanborn refers, but if I were to discuss them at length I should be forced merely to paraphrase his language, as a study of the authorities he cites has led me to the same conclusion; and the repetition of what has already been so well said would contribute nothing to the advantage of the bench, the bar or the individual litigants whose case is before us.

*401A few cases decided since his opinion was written, however, may he noticed. In Earl v. Lubbock (L. R. 1905 [1 K. B. Div.] 253) the Court of Appeal in 1904 considered and approved the propositions of law laid down by the Court of Exchequer in Winterbottom v. Wright (supra), declaring that the decision in that case, since the year 1842, had stood the test of repeated discussion. The master of the rolls approved the principles laid down by Lord Abinger as based upon sound reasoning; and all the members of the court agreed that his decision was a controlling authority which must he followed. That the Federal courts still adhere to the general rule, as I have stated it, appears by the decision of the Circuit Court of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac Motor Car Co. v. Johnson (221 Fed. Rep. 801). That case, like this, was an action by a subvendee against a manufacturer of automobiles for negligence in failing to discover that one of its wheels was defective, the court holding that such an action could not be maintained. It is true there was a dissenting opinion in that case, but it was based chiefly upon the proposition that rules applicable to stage coaches are archaic when applied to automobiles and that if the law did not afford a remedy to strangers to the contract the law should he changed. It this be true, the change should he effected by the legislature and not by the courts. A perusal of the opinion in that case and in the Huset case will disclose how uniformly the courts throughout this country have adhered to the rule and how consistently they have refused to broaden the scope of the exceptions. I think we should adhere to it in the case at bar and, therefore, I vote for a reversal of this judgment.

Hiscock, Chase and Cuddeback, JJ., concur with Cardozo, J., and Hogan, J., concurs in result; Willard Bartlett, Ch. J., reads dissenting opinion; Pound, J., not voting.

Judgment affirmed.

*456GIBSON, C. J.

Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling “bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous . . . and likely to explode.” This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about eighteen inches from the ease “it exploded in my hand.” The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, “It made a sound similar to an electric light bulb that would have dropped. It made a loud pop.” Plaintiff’s employer testified, “I was about twenty feet from where it actually happened and I heard the explosion.” A fellow employee, on the opposite side of the counter, testified that plaintiff “had the bottle, I should judge, waist high, and I know that it didn’t bang either the case or the door or another bottle . . . when it popped. It sounded just like a fruit jar would blow up. . . .” The witness further testified that the contents of the bottle “flew all over herself and myself and the walls and one thing and another.”

The top portion of the bottle, with the cap, remained in plaintiff’s hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the “fracture line” where the bottle broke in two.

*457One of defendant’s drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.

Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur.

Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment.

Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. (See Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087] ; Stolle v. Anheuser-Busch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001] ; Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d 601] ; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So.2d 677] ; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Moeres v. Coca-Cola Bottling Co., 290 Mich. 567 [287 N.W. 922] ; Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d 1020.) Other courts for varying reasons have refused to apply the doctrine in such cases. (See Gerber v. Faber, 54 Cal.App.2d 674 [129 P.2d 485] ; Loebig’s Guardian v. Coca-Cola Bottling Co., 259 Ky. 124 [81 S.W.2d 910]; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz, 35 Misc. 341 [71 N.Y.S. 942]; Luciano v. Morgan, 267 App. Div. 785 [45 N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v. Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516] ; Wheeler v. Laurel Bottling Works, 111 Miss. 442 [71 So. 743, L.R.A. 1916E 1074] ; Seven-Up Bottling Co. v. Gretes, _Va._[27 S.E.2d 925]; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135, 28 L.R.A.N.S. 949].) It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily *458would not occur in the absence of negligence by the defendant. (Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [140 P.2d 369], and authorities there cited; cf. Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724]; Prosser on Torts [1941], 293-301.)

Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession. (See cases collected in Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140 P.2d 369].) As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 [20 A.2d 352, 354], “defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; ... to get to the jury the plaintiff must show that there was due care during that period.” Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: “Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.” (See, also, Olson v. Whitthorne (& Swan, 203 Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129].) It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. (Cf. Prosser, supra, p. 300.) If such evidence is presented, the question becomes one for the trier of fact (see, e. g., *459 MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868, 869]), and, accordingly, the issue should be submitted to the jury under proper instructions.

In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. In 1 Shearman and Redfield on Negligence (rev. ed. 1941), page 153, it is stated that: “The doctrine . . . requires evidence which shows at least the probability that a particular accident could not have occurred without legal wrong by the defendant.”

An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies.

The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant’s negligence would arise. If *460the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently-failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it. Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.

A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours—approximately one out of every 600 bottles—and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are “pretty near” infallible.

It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do *461occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and cheeking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. (Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; Michener v. Hutton, 203 Cal. 604, 610 [265 P. 238, 59 A.L.R. 480].)

The judgment is affirmed.

Shenk, J., Curtis, J., Carter, J., and Sehauer, J., concurred.

TRAYNOR, J.

I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used, without inspection, proves to have a defect that causes injury to human beings. McPherson v. Buick Motor Co., 217 382 [111 N.E. 1050], Ann.Cas. 1916C 440, L.R.A. 1916F, established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer *462is responsible for an injury caused by such an article to any person who comes in lawful contact with it. (Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards not. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; O’Rourke v. Bay & Night Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact in*463ferred is “clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has bee established as a matter of law.” (Blank v. Coffin, 20 Cal.2 457, 461 [126 P.2d 868].) An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.

In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470 declares that food is adulterated when “it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome or injurious to health.” The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (§ 26451), has any deleterious substance (§26470 (6)), or renders the product injurious to health. (§26470 (4)). The criminal liability under the statute attaches without proof of fault, so thaf the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. (People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. (See eases cited in Prosser, Torts, p. 693, note 69.)

The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal lia*464bility only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective goods by the imposition of civil liability generally.

The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. (Goetten Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142] ; Mix v. Ingersoll Candy Co., 6 Cal.2d 674 [59 P.2d 144] ; Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive Grocery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339] ; Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F 1172].) This warranty is not necessarily a contractual one (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1 Williston on Sales, 2d ed., §§ 197-201), for public policy requires that the buyer be insured at the seller’s expense against injury. (Race v. Krum, supra; Ryan v. Progressive Grocery Stores, supra; Chapman v. Roggenkamp, 182 Ill.App. 117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown, The Liability of Retail Dealers For Defective Food Products, 23 Minn.L.Rev. 585.) The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. (Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev. 494, 509.) Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.

The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words *465of Judge Cardozo in the McPherson ease: “The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used.” Yet, the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a solution.” While the defendant’s negligence in the McPherson case made it unnecesssary for the court to base liability on warranty, Judge Cardozo’s reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.

This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend “upon the intricacies law of sales” and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 282 [93 P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and health inhere in other consumers’ goods that are defective and there is no reason to differentiate them from the dangers of defective food products. (See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)

In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negli*466gence: “Practically he must know it [the product] is fit, or bear the consequences if it proves destructive.” (Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see Jeanblane, Manufacturer’s Liability to Persons Other Than Their Immediate Vendees, 24 Va.L.Rev. 134.) Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts (Decker & Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict liability. (See Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 475]; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573, 46 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L. Rev., 399, 403; Feezer, Capacity To Bear The Loss As A Factor In The Decision Of Certain Types of Tort Cases, 78 U. of Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The Doctrine of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. 263, 271; Pound, The End of Law As Developed In Legal Rules And Doctrines, 27 Harv.L.Rev. 195, 233.) Warranties are not necessarily rights arising under a contract. An action on a warranty “was, in its origin, a pure action of tort,” and only late in the historical development of warranties was an action in assumpsit allowed. (Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) § 970.) “And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort.” (Williston, loc. cit.; see Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117, 118.) On the basis of the tort character of an action on a warranty, recovery has been allowed for wrongful death as it could not be in an action for breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Dugan Bros., 175 Mise. 182 [22 N.Y.S.2d 238]; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S. Kresge Co., supra, “Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.” Even a seller’s express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].) “As an actual agreement to contract is not essential, the obli*467gation of a seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable.” (1 Williston on Sales, 2d ed. §197; see Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)

As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash; 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521]; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496], affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will, Trade-Marks and Unfair Trading (1914) ch. VI, A Study of The Consumer, p. 65 et seq.; Williston, Liability For Honest Misrepresentations As Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers, no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram-Distillers Corp., 299 U.S, 183 [57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476]; Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (See Bogert and Pink, Business Practices Regarding Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more *468intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. (See Soule, Consumer Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer, Manufacturer’s Liability For Injuries Caused By His Products: Defective Automobiles, 37 Mich.L. Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.)

The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

Appellant’s petition for a rehearing was denied August 3, 1944. Edmonds, J., voted for a rehearing.

Eldridge, J.,

delivered the opinion of the Court.

We are here presented with two questions of law certified to this Court by the United States District Court for the District of Maryland pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), § 12-601 et seq. of the Courts and Judicial Proceedings Article.

The plaintiff, James D. Phipps, an employee in the service department of Marbert Motors, Inc., of Annapolis, Maryland, was injured on November 1, 1972, when a 1972 *339Pontiac automobile which had been delivered to Marbert for servicing, and which Phipps was test driving in Annapolis, left the highway and crashed into a tree. A co-worker, Alexander F. Barchanowicz, who was a passenger in the automobile, was also injured.

James Phipps and his wife, Evalyn Phipps, instituted this action on October 31, 1975, in the United States District Court for the District of Maryland against the manufacturer of the automobile, General Motors Corporation. They alleged that the accident occurred when the accelerator of the automobile became stuck without warning, causing the automobile to accelerate suddenly at a high rate of speed and leave the road. It was further alleged that this malfunction of the automobile was caused by latent defects in the automobile’s accelerator mechanism, in the carburetor and its components, and in the motor mounts.

The complaint contains six counts. In the first three counts, three separate causes of action are set forth. Count one alleges negligence in the design and manufacture of the automobile. Count two alleges breach of express and implied warranties. Count three alleges that the automobile was in a defective condition rendering it “not reasonably safe” when it left the control of the defendant and predicates liability upon the theory of strict liability in tort.1 The final three counts of the complaint, in which James Phipps was joined by his wife, are each based upon the above theories respectively and seek damages for loss of consortium.

General Motors filed an answer to the complaint and also filed motions to dismiss both counts based upon the theory of strict liability in tort and the count seeking damages for loss of consortium caused by the alleged breach of warranty. In support of its motion to dismiss the strict liability counts, General Motors relied upon several prior cases of this Court which had declined, under the circumstances involved, to adopt the theory of strict liability in tort. General Motors argued that no such cause of action is recognized in this *340State. As to the loss of consortium count, General Motors relied upon Deems v. Western Maryland Ry., 247 Md. 95, 231 A. 2d 514 (1967), in contending that an action for loss of consortium is actually an action for damages to the marriage relationship and not for damages sustained by an individual. Since a seller’s warranty extends only to a non-purchaser who is a “natural person” and who is “injured in person” under § 2-318 of the Maryland Uniform Commercial Code, Maryland Code (1975), § 2-318 of the Commercial Law Article, General Motors argued that no action for loss of consortium could be brought by a non-buyer as the marriage relationship was not a “natural person” who was “injured in person.”

Phipps opposed both motions. Citing several trial court opinions, he argued that the. courts of Maryland have recognized the theory of strict liability in cases where it would be applicable. Phipps also argued that a joint action for loss of consortium was proper where one spouse sustains bodily injury.

The United States District Court, finding that there were no controlling precedents in the decisions of this Court, certified the following two questions:

“1. Do the third and sixth counts of the Complaint (alleging that the defendant manufactured and placed on the market an automobile in a defective condition which condition rendered the automobile not reasonably safe for its intended use) state causes of action under Maryland law by a person who allegedly sustained bodily injuries by reason of the defective condition?

“2. Does the fifth count of the Complaint (alleging injury to a marital relationship by reason of breaches of express and implied warranties) state a cause of action under Maryland law?”

(1)

The theory of strict liability is set forth in the Restatement (Second) of Torts § 402 A (1965):

*341“Special Liability of Seller of Product for Physical Harm to User or Consumer

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

As the Official Reporter’s Notes to this section indicate, the rule stated in § 402 A was based upon a developing body of case law expanding the liability of manufacturers for injury caused by defective products. Early cases in several jurisdictions created an exception to the general rule that a supplier of chattels was not liable to a third person in the absence of negligence or privity of contract where food products were involved. Liability was generally premised upon an “implied warranty” which arose from the seller’s representation in placing the food on the market that it was fit for human consumption. Although employing warranty language, the strict liability theory was essentially an action in tort dispensing with the traditional requirement of privity in contract actions. E.g., Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1918); Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927). Strict liability without privity was slowly extended to products other than food for human consumption, such as animal food, McAfee v. Cargill, Inc., 121 F. Supp. 5 (S.D. Cal. 1954); Midwest *342 Game Company v. M.F.A. Milling Company, 320 S.W.2d 547 (Mo. 1959). Products involving intimate bodily use were brought within the strict liability rule, e.g., Graham v. Bottenfield’s Inc., 176 Kan. 68, 269 P. 2d 413 (1954) (hair dye); Markovich v. McKesson & Robbins, Inc., 106 Ohio App. 265, 149 N.E.2d 181 (1958) (permanent wave solution). Finally, strict liability for defective products other than food or those involving intimate bodily contact was imposed without privity or a showing of negligence beyond the defect in the product. Spence v. Three Rivers Builders & Masonry Supply, 353 Mich. 120, 90 N.W.2d 873 (1958) (cinder building blocks); Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 161 A. 2d 69, 75 A.L.R.2d 1 (1960) (automobile); Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P. 2d 897, 13 A.L.R.3d 1049 (1962) (combination power tool). Greenman was the leading case expressly recognizing that the basis for strict liability for defective products was tort rather than contract. Justice Traynor there stated for the Supreme Court of California (377 P. 2d at 901):

“Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law (see e.g., Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P.2d 413, 418; ...), and the refusal to permit the manufacturer to define the scope of its own responsibility for defective products (Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 84-96; . . .) make clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer’s liability to those injured by their defective products *343unless those rales also serve the purposes for which such liability is imposed.”2

Various justifications for imposing strict liability in tort on manufacturers have been advanced by the courts. It has been said that the cost of injuries caused by defective products should in equity be “borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves” and that “warranties serve this purpose fitfully at best.” Greenman v. Yuba Power Products, Inc., supra, 377 P. 2d at 901. It has also been suggested that imposing strict liability on manufacturers for defective products is equitable because it shifts the risk of loss to those better able financially to bear the loss. Seely v. White Motor Company, 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P. 2d 145, 151 (1965). Another reason advanced is that a consumer relies upon the seller in expecting that a product is safe for the uses for which it has been marketed, and that this expectation is better fulfilled by the theory of strict liability than traditional negligence or warranty theories. Markle v. Mulholland's, Inc., 265 Ore. 259, 509 P. 2d 529, 532-534 (1973). And still another reason advanced is that the requirement of proof of a defect rendering a product unreasonably dangerous is a sufficient showing of fault on the part of the seller to impose liability without placing an often impossible burden on the plaintiff of proving specific acts of negligence. McCormack v. Hankscraft Company, 278 Minn. 322, 154 N.W.2d 488, 500 (1967); Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55, 63 (1967).3

*344The essential elements of an action in strict liability are set forth in § 402 A. For recovery, it must be established that (1) the product was in a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition. However, in an action founded on strict liability in tort, as opposed to a traditional negligence action, the plaintiff need not prove any specific act of negligence on the part of the seller. The relevant inquiry in a strict liability action focuses not on the conduct of the manufacturer but rather on the product itself. See Weinstein, Twerski, Piehler, Donaher, Product Liability: An Interaction of Law and Technology, 12 Duquesne L. Rev. 425, 429 (1974). Thus the standard to be applied in determining whether a product is defective becomes critical.

For a seller to be liable under § 402 A, the product must be both in a “defective condition” and “unreasonably dangerous” at the time that it is placed on the market by the seller. Both of these conditions are explained in the official comments in terms of consumer expectations. As Comment g explains, the requirement of a defective condition limits application of § 402 A to those situations where “the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” An “unreasonably dangerous” product is defined in Comment i as one which is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

In those cases where the defect is a result of an error in the manufacturing process, that is where the product is in a condition not intended by the seller, there is less difficulty in applying the defectiveness test of § 402 A. See Frumer and Friedman, Products Liability § 16A[4] at pp. 3-318 — 3-320 (1976). Where, however, the alleged defect is the result of the design process so that the product causing injury was in a *345condition intended by the manufacturer, the test has proved more difficult to apply. This difficulty has caused some courts and commentators to suggest that the theory of strict liability in tort is not really applicable in cases involving design defects as opposed to construction or manufacturing defects but rather that, analytically, traditional negligence standards still apply. See Dorsey v. Yoder Company, 331 F. Supp. 753, 759-760 (E.D. Pa. 1971), aff'd, 474 F. 2d 1339 (3d Cir. 1973); Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal. Rptr. 890, 895 (1973); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825, 836-838 (1973). The reasoning of these authorities is that in a design defect case the standard of defectiveness under § 402 A, involving as it does the element of unreasonable danger, still requires a weighing of the utility of risk inherent in the design against the magnitude of the risk.4 Cf. Volkswagen of America v. Young, 272 Md. 201, 321 A. 2d 737 (1974). However, there are those kinds of conditions which, whether caused by design or manufacture, can never be said to involve a reasonable risk. For example, the steering mechanism of a new automobile should not cause the car to swerve off the road, Henningsen v. Bloomfield Motors, Inc., supra; the drive shaft of a new automobile should not separate from the vehicle when it is driven in a normal manner, Elmore v. American Motors Corporation, 70 Cal. 2d 578, 75 Cal. Rptr. 652, 451 P. 2d 84, 33 A.L.R.3d 406 (1969); the brakes of a new automobile should not suddenly fail, Sharp v. Chrysler Corporation, 432 S.W.2d 131 (Tex.Civ.App. 1968); and the accelerator of a new automobile *346should not stick without warning, causing the vehicle suddenly to accelerate. Conditions like these, even if resulting from the design of the products, are defective and unreasonably dangerous without the necessity of weighing and balancing the various factors involved.

Under § 402 A, various defenses are still available to the seller in an action based on strict liability in tort. These defenses are set forth and explained in the official comments following § 402 A. For example, the seller is not liable where injury results from abnormal handling or use of the product (Comment h), where mishandling or alteration after delivery of the product renders it unsafe (Comment g), or if warnings or instructions supplied with the product are disregarded by the consumer where, if used in accordance with these warnings, the product would be safe (Comment j). Additionally, where the plaintiff unreasonably proceeds to use a product despite a known risk or danger, the defense of assumption of the risk is still available (Comment n). As to defenses in strict liability actions generally, see Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand. L. Rev. 93 (1972).

This Court has in prior cases, where the question was raised, declined to adopt the strict liability principles of § 402 A, finding that under the facts of those cases § 402 A was not applicable and would have afforded no additional basis of liability. It was therefore deemed inappropriate to adopt the theory of strict liability. A review of those cases, however, demonstrates that this Court has never rejected the strict liability theory of § 402 A as a basis of liability in an appropriate fact situation.

The first case in which this Court was urged to adopt the strict liability theory was Telak v. Maszczenski, 248 Md. 476, 237 A. 2d 434 (1968). There the plaintiff, a guest at a private swimming pool, was paralyzed when he dove into the pool from a diving board, installed by the owner, and struck his head on the bottom of the pool. In an action against the distributor of the pool, it was alleged that the pool was defective and unreasonably dangerous in that the maximum *347depth of the pool, seven feet, was insufficient for safe diving. The evidence revealed that the owner had inspected several pools sold by the distributor before purchasing his pool and that the condition of the pool as delivered was exactly as represented by the seller and as observed by the buyer before the purchase. Relying on Comment g of § 402 A, that the section is applicable only where the product is “in a condition not contemplated by the ultimate consumer,” the Court found that the strict liability theory was not applicable. 248 Md. at 488-489. It should also be noted that the plaintiff was an excellent swimmer, and was familiar with the depth and slope at the pool’s bottom. Id. at 481,484. Additionally, the diving board was not provided by either the manufacturer or the distributor of the pool, but was procured from another source and installed by the owners. Id. at 480. As previously discussed, § 402 A does not apply where subsequent mishandling or alteration render an otherwise safe product unsafe (Comment g), or where one proceeds in the face of a known danger (Comment n).

This Court was again urged to adopt strict liability in Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A. 2d 855 (1969). In that case the plaintiff was injured while cutting grass with a power mower when he slipped on an incline and caught his foot under the mower. An action was brought against both the manufacturer and retailer of the mower, on the basis of negligence, breach of warranty, and strict liability for failing to provide protective guards on the mower. This Court upheld the action of the trial court in sustaining a demurrer to all three counts. As to the strict liability count, the Court noted that the absence of a safety guard was apparent to the plaintiff at the time of the purchase, that the mower had presumably functioned safely for more than a year, and that by the plaintiffs own allegations, the injury was caused by his fall and not an unknown defect in the mower. Relying on Comment g, the Court found that § 402 A was not applicable. 253 Md. at 297.

Another alleged design defect was involved in Volkswagen of America v. Young, supra, 272 Md. 201. In that case, the driver of an automobile was killed when, upon impact with *348another automobile, the seat in which he was sitting separated from the floor, propelling him into the rear portion of the car. The plaintiff alleged defective design in the seat mechanism and passenger compartment configuration, creating an unreasonable risk of injury. We again declined to adopt strict liability as a theory of liability, reasoning that under the particular facts of that case, strict liability would have “no special meaning.” As previously discussed, in some circumstances the question of whether a particular design is defective may depend upon a balancing of the utility of the design and other factors against the magnitude of that risk. Thus, the existence of a design defect in a case like Volkswagen is a question which itself depends upon the degree of care exercised by the manufacturer in view of the type, style, purpose, and cost of the vehicle. 272 Md. at 221. Similarly in Frericks v. General Motors Corp., 274 Md. 288, 336 A. 2d 118 (1975), a case also involving an alleged design defect where the existence of the defect itself depended in part upon the reasonableness of the seller’s conduct, we reiterated that “[t]his Court has not, as yet, either rejected or accepted the ‘strict liability’ theory ... in the type of case where that section might logically be applied.” 274 Md. at 298. The alleged defect in the instant case, however, whether resulting from a defective design or not, is clearly of a different character from the asserted design defects in Volkswagen and Frericks.

General Motors argues that we should not adopt the doctrine of strict liability for several reasons. It contends that the warranty provisions of the Maryland Uniform Commercial Code and the doctrine of strict liability in tort are substantially the same in protecting the interests of both consumers and sellers, and thus, in its view, there is no need to adopt the theory of strict liability. General Motors further contends that, even if we were to conclude that the differences between the two theories of liability were significant enough to adopt § 402 A of the Restatement, the Legislature in enacting the warranty provisions of the Uniform Commercial Code has “preempted the field of products liability law.” Finally, General Motors claims that *349the adoption of strict liability would substantially alter the rights of consumers and sellers as presently defined by the law of negligence and contract, and that the policy reasons advanced by the courts for altering those traditional rights are more properly a matter of legislative rather than judicial determination.

We do not agree with any of General Motors’ contentions. With respect to the differences between strict liability in tort and warranty actions, it is true that the requirement of privity, once an obstacle to recovery under a contract action, and a major reason for the adoption of § 402 A of the Restatement (Second), has been eliminated by the General Assembly of Maryland in actions where personal injuries result from a breach of warranty. Sections 2-318 and 2-314 of the Maryland Uniform Commercial Code. See Frericks v. General Motors Corp., 278 Md. 304, 363 A. 2d 460 (1976). But there still remain various other requirements and limitations imposed by contract law which may be encountered when pursuing an action for breach of warranty but not when seeking damages for injury caused by a defective product under the theory of strict liability in tort.

One of the more significant differences between the two theories is the right of the seller to disclaim or limit remedies for breach of warranty. Although the Maryland Legislature has eliminated the right of sellers to disclaim or limit warranties arising from the sale of consumer goods, §§ 2-316.1, 2-719 (3) of the Maryland Uniform Commercial Code, there is no similar limitation on the right to exclude warranties where the goods involved are not consumer goods as defined in § 9-109. Under § 402 A of the Restatement, a limitation or exclusion of warranties is irrelevant to the question of the seller’s liability for injury caused by defective goods regardless of the classification of the goods (Comment m). The notice requirement of § 2-607 of the Uniform Commercial Code may also prove to be an obstacle to recovery. Although we have recently held that a third party beneficiary of a seller’s warranties is not required to give notice of breach as a precondition to maintaining a *350breach of warranty action, Frericks v. General Motors, supra, 278 Md. at 315-316, an actual buyer is still required by § 2-607 (3) to give notice or be barred from any recovery for breach of warranty. There is no similar notice requirement for bringing an action based on strict liability in tort. Also, an action for breach of warranty is governed by the limitations period contained in § 2-725 of the Uniform Commercial Code, which provides that an action must be brought within four years of the time it accrues. A cause of action in a warranty case accrues “when tender of delivery is made.” An action under the theory of strict liability in tort, however, would be governed by the general tort limitations period, Maryland Code (1974), § 5-101 of the Courts and Judicial Proceedings Article, which is three years but may begin to run at a later time. These are examples of significant differences between actions based upon contract and strict liability in tort.

Additionally, we cannot agree with General Motors that the Legislature has preempted the field of product liability law, precluding our adoption of Restatement § 402 A. The only authority cited by General Motors in support of this contention is the concurring opinion in Markle v. Mulholland’s, Inc., supra, 509 P. 2d at 536-539. As the majority in that case noted in rejecting a similar contention and adopting strict liability, there is no indication that the Legislature, in enacting the Uniform Commercial Code, intended to prevent the further development of product liability law by the courts. In the absence of any expression of intent by the Legislature to limit the remedies available to those injured by defective goods exclusively to those provided by the Maryland Uniform Commercial Code, we believe that General Motors’ preemption contention is without merit.

Finally, we disagree with General Motors’ argument that adoption of strict liability would result in such a radical change of the rights of sellers and consumers that the matter should be left to the Legislature. As we have previously discussed, the major distinction between an action in strict liability in tort and one founded on *351traditional negligence theory relates to the proof which must be presented by the plaintiff. Although the plaintiff need not prove any specific act of negligence on the part of the seller, as in other product liability cases, proof of a defect existing in the product at the time it leaves the seller’s control must still be presented. As one commentator has observed, the doctrine of strict liability is really but another form of negligence per se, in that it is a judicial determination that placing a defective product on the market which is unreasonably dangerous to a user or consumer is itself a negligent act sufficient to impose liability on the seller (Wade, Strict Tort Liability of Manufacturers, 19 Sw. L. J. 5, 14(1965)):

“In essence, strict liability in this sense is not different from negligence per se. Selling a dangerously unsafe product is the equivalent of negligence regardless of the defendant’s conduct in letting it become unsafe. This is exactly the situation when a pure-food statute is construed to make its violation negligence per se; if the food is not wholesome, the statute is violated and the defendant is negligent. It has long been recognized that although the normal test for negligence is the general standard of what a reasonable man would do under similar circumstances and, although this test is ordinarily applied by the jury, the courts on appropriate occasions may lay down specific rules of conduct. They do this when they accept a criminal statute as setting forth a specific rule and then adopt that rule for a civil case. But they also do it from time to time even in the absence of a statute. Thus, a court which appears to be taking the radical step of changing from negligence to strict liability for products is really doing nothing more than adopting a rule that selling a dangerously unsafe chattel is negligence within itself.”

Thus, the theory of strict liability is not a radical departure from traditional tort concepts. Despite the use of the term *352“strict liability” the seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product. Dippel v. Sciano, supra, 155 N.W.2d at 63; Wade, supra, 19 Sw. L. J. at 13. Proof of a defect in the product at the time it leaves the control of the seller implies fault on the part of the seller sufficient to justify imposing liability for injuries caused by the product. Where the seller supplies a defective and unreasonably dangerous product, the seller or someone employed by him has been at fault in designing or constructing the product.

Almost all of the courts of our sister states have adopted the strict liability principles set forth in § 402 A of the Restatement (Second) of Torts. Several reasons for adopting strict liability are summarized in Comment c to § 402 A as follows:

“... the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who markét them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.”

We find the above reasons persuasive. In our view, there is no reason why a party injured by a defective and unreasonably dangerous product, which when placed on the market is impliedly represented as safe, should bear the loss of that injury when the seller of that product is in a better *353position to take precautions and protect against the defect. Yet this may be the result where injured parties are forced to comply with the proof requirements of negligence actions or are confronted with the procedural requirements and limitations of warranty actions. Therefore, we adopt the theory of strict liability as expressed in § 402 A of the Restatement (Second) of Torts.

For these reasons, we conclude that the third and sixth counts of the complaint state a cause of action under Maryland law. The first certified question is answered “Yes.”

(2)

The second certified question concerns the issue of whether a third party beneficiary of a seller’s warranty under § 2-318 of the Maryland Uniform Commercial Code may maintain an action for loss of consortium caused by breach of warranties.

Where there is an injury to a married person, recovery for damages to the marriage relationship in a breach of warranty action would clearly seem to be allowable as consequential damages under the principles of Hadley v. Baxendale, 9 Exch. 341 (1854). See §§ 2-714 and 2-715 of the Maryland Uniform Commercial Code; Addressograph-Multigraph v. Zink, 273 Md. 277, 286, 329 A. 2d 28 (1974). General Motors does not dispute this and, in fact, would appear to concede that if Evalyn Phipps had been the actual buyer of the automobile she could recover for loss of consortium. Rather, General Motors’ objection to the fifth count is premised upon the narrower grounds of the nature of an action for loss of consortium as delineated in Deems v. Western Maryland Ry., supra, 247 Md. 95. Relying on Deems, General Motors argues that this count does not state a cause of action because an action for loss of consortium is for injury to the marriage entity and not an action for personal injury. Thus, General Motors concludes, it is not within the contemplation of § 2-318 of the Maryland Uniform Commercial Code which extends a seller’s warranty “to any natural person ... who is injured *354in person by breach of the warranty.” In our view General Motors, in arguing that an action for loss of consortium is not for injury to a person, misconceives the holding in Deems v. Western Maryland By., supra.

In Maryland prior to Deems, a husband could bring an action for loss of consortium but a wife could not. In Deems, a wife attempted to bring a separate action for loss of consortium subsequent to the settlement of her husband’s personal injury suit. The trial court sustained a demurrer to the action. In this Court, the wife argued that the Maryland law, in allowing a husband to maintain a separate action for loss of consortium but not a wife, was a denial of equal protection of the laws in violation of the Fourteenth Amendment. Because of this contention, and also because of the possibility of double recovery when a loss of consortium action is brought separately from the underlying personal injury action, this Court held that either the husband or the wife could assert a claim for loss of consortium but that the claim must be brought in a joint action for injury to the marital relationship tried at the same time as the underlying personal injury action.

The reasoning of the Court in Deems clearly indicates that an action for loss of consortium is an action for injury to both spouses and not, as General Motors contends, an action for damages to a legal entity separate and apart from the persons who comprise that “entity.” In Deems, the Court was presented with the contention that the prior law allowing only one spouse to bring an action for loss of consortium was unconstitutional and that to rectify this situation no action for loss of consortium should be allowed by either spouse. The Court recognized, however, that loss of consortium represented a serious personal injury to both spouses and should continue to be compensable, stating (247 Md. at 108-109):

“That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact evidenced, if not by logic, by human experience since the institution of marriage became a basic part of our mores. If the husband is *355the one injured, it is not only the wife who is affected by reason of any resultant change of the husband’s personality or ability to engage in all the intangible associations which marriage brings; he too suffers the effect of the change, if only in reaction to his wife’s unhappiness. Today, at least, it is unquestioned that the desire to have children and the pleasures of sexual intercourse are mutually shared. If the husband’s potency is lost or impaired, it is both the man and woman who are affected. If the physical injury is to the wife, she sustains the same kind of loss in the marital relation as he does in the converse situation.

“It is because these marital interests are in reality so interdependent, because injury to these interests is so essentially incapable of separate evaluation as to the husband and wife, that the conception of the joint action seems to us a fair and practical juridical development. It takes into account, we believe, the weighty criticism of the old law which restricts the right of recovery to the husband as well as the substantial arguments against creating a new and separate cause of action for the wife.”

Thus, even though a loss of consortium action was referred to by the Court as an action "for injury to the marital relationship,” it is clear that the underlying purpose and rationale of the joint action is to compensate the individual persons who form that relationship for the personal injury which they both sustain.

In essence, General Motors’ contention is that a joint action for loss of consortium represents a separate cause of action accruing to the marriage entity and is therefore not an aspect of personal injury suffered by the persons who together form the marriage entity. That this is not the theory of Deems was made clear in Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 50, 321 A. 2d 149 (1974), where the Court, discussing Deems, said:

“It is entirely clear to us that the decision in that *356case created a new substantive right, and as a concomitant, delineated a different procedural approach in actions for loss of consortium. Nevertheless, it gave rise to no new cause of action

It follows then, that a joint action for loss of consortium may be maintained when a breach of warranty is alleged under § 2-318 of the Commercial Code. Both spouses are obviously natural persons within the meaning of § 2-318. And whatever limitation on the measure of damages may have been intended when the Legislature required that a third party beneficiary be “injured in person,” we do not believe that it was intended to prevent recovery for such uniquely personal injuries as loss of consortium which traditionally were recoverable in a personal injury action. The second certified question is answered “Yes.”

Questions of law answered as herein set forth.

Appellee to pay costs.

WILLIAM E. DOYLE, Circuit Judge.

Plaintiff-appellee was awarded a verdict and judgment in the amount of $125,000 for personal injuries which were suffered by him when he slipped off the tailgate of a dump truck while trying to alight from it and fell into an open hopper into which the grain from the tilted truck was then being deposited for the purpose of being fed to a fan and blower which in turn propelled it sufficiently high so as to place it in the top of silos or storage areas. The essential parts of the offending machine are a hopper which receives the grain and which houses augers, three of which move the forage or grain to the back of the hopper and are propelled by a fourth one which is perpendicular to the other three and moves the material to the fan and pipe. Plaintiff-appellee slipped from the dump truck into the hopper and suffered injuries when his feet and legs became caught in the augers and the fan.1

Fox River Tractor Company, appellant herein, was shown to have manufactured this particular forage blower. The unit was manufactured in 1971 and was then sold to one Harold Smith, who was the brother of the plaintiff-appellee’s employer. The unit is not equipped with a motor. Its source of power is from a separate engine. There is a clutch handle over the top of the hopper capable of stopping the movement of the augers.

The center of the controversy in this-case is the fact that the hopper did* not have a screen on it to protect a person working as the plaintiff was working from coming into contact with the augers and incurring injury such as that which he suffered. The screen which covers the hopper has an outside frame three and one-half feet long and three feet wide. Metal dowels run lengthwise and widthwise, and the space within these dowels is approximately a square foot. Appellant defends the extensive spacing contending that this amount of space was needed in order for the large chunks of grain or forage to go through. The fact question at the trial was whether the machine could work efficiently with a screen having dimensions capable of preventing the feet and legs of workmen from coming into contact with the augers.

After having worked a very long day on October 17, 1972, and following his having had a short rest at home, plaintiff-appellee returned at 11:00 p. m. on the 17th and at approximately 5:30 — 6:00 a. m. on the morning of the 18th (while continuing to work) the injury occurred (as previously noted), while he tried to climb out of the truck bed. He slipped and fell into the moving augers. The working conditions were dangerous. The grain was wet, the bed of the dump truck was at a downward angle so as to bring about the movement of the grain and he was engaged in helping the grain or forage move and breaking up clumps of it so that the material placed in the hopper could be refined, whereby the augers and blower could deal with it. Plaintiff-appellee acknowledged that his shoes were wet and slippery and also acknowledged that possibly he had used the side of the machine to step on when exiting from the truck. Almost immediately after he fell into the hopper his companions turned off the power.

The trial court proceeded on the doctrine of products liability or, as the Oklahoma Supreme Court terms it, Manufacturers’ Products Liability based on the ALI Restatement of Torts 2d § 402A.

The expert testimony on behalf of plaintiff-appellee, given by a mechanical engineer, a professor at the University of Houston, was that the machine had been defectively designed in that it did *483not have a protective shield capable of protecting a man’s feet from coming into contact with the augers inside the hopper. Other evidence on behalf of plaintiff-appellee was to the effect that after the injury plaintiff-appellee’s employer borrowed a machine which was similar to that which injured the plaintiff-appellee. A grid was welded across the top which was so spaced as to prevent a man’s foot from entering into the dangerous area. The purpose of this was to refute the defendant-appellant’s contention that the machine could not perform the work which it was designed to perform if grids of this dimension covered it. It would have been impossible for the grain to penetrate these grids, according to defendant’s witnesses. But plaintiff-appellee’s evidence sought to demonstrate the contrary. Indeed, the employer was shown to have loaded more than a million pounds of grain into the silo with the use of the borrowed machine.

Defendant-appellant now seeks a reversal of the sizeable verdict on the following grounds:

1. Contending that the trial court erred in failing and refusing to rule that the evidence did not substantiate the tests provided in Restatement 2d § 402A.

2. That it was error for the court to rule that the expert on behalf of plaintiff-appellee was qualified.

3. That it was error for the court to receive testimony concerning collateral source payment.

We reject the above contentions and affirm the judgment.

I.

The trial court did not err in refusing to direct a verdict for the defendant. The argument of defendant is that the evidence failed to establish a case under the law of manufacturers’ products liability as it is applied in the State of Oklahoma. We must, however, on motion for directed verdict consider the evidence and the inferences to be drawn from the evidence in a light most favorable to the party against whom the motion is directed. If the evidence and the inferences are such that reasonably minded persons in the exercise of fair and impartial judgment are able to reach different conclusions on the issues of fact, the motion is to be denied and the question is properly to be submitted to the jury. Transcontinental Bus System, Inc. v. Taylor, 265 F.2d 913 (10th Cir. 1959). The Oklahoma eourts follow this identical principle. See Seay v. General Elevator Co., 522 P.2d 1022 (Okl.1974).

Turning to the elements of § 402A, supra, the question raised is whether the device which caused the injury is unreasonably dangerous within the meaning of § 402A, which provides that the seller of a product in a defective condition, unreasonably dangerous, to the user or consumer or to his property is subject to liability for harm caused to the ultimate user or consumer.2

The contention of plaintiff is that the source of the dangerousness was the machine’s defective design, and the question of law which we consider is whether the evidence satisfied this. Plaintiff-appellee’s expert testified that the defect was in the grid spacing and the protective shield. It is the width and breadth of this spacing, the extent of which renders it incapable of preventing a foot from penetrating it and going into the augers, which is the alleged defective design. The expert said that this defect could have been remedied without substantial expenditure and without diminishing efficiency.

*484The defendant’s expert, on the other hand, testified that if smaller grid spacings were used, the forage or grain would not go through to the hopper. Plaintiff’s showing that his employer had processed more than a million pounds of grain through a much smaller grid which had been welded to a borrowed machine contradicted this. This latter allowed the jury to determine that a more effective grid could have been installed without sacrificing efficiency.

Defendant’s expert also testified that no other machine had such a grid. Plaintiff’s expert countered that while no forage blowers had such protective devices, he was aware of standards of general applicability to the design of agricultural implements other than the forage blower and that these were in existence at the time that the subject machine was designed. Plaintiff introduced a specific safety standard which had been promulgated by the American Society of Agricultural Engineers for the safety of agricultural equipment. This called for shielding to a degree consistent with the function of the component. Defendant’s engineer did not quarrel with that standard.3 Defendant-appellant’s engineer finally testified that the defendant company acknowledged that the agricultural equipment standard required it to design a shield for the hopper if it were possible, whereby it could still function.

In the light of the above evidence, it cannot be said that the evidence is insufficient to support the applicable standards; it established the necessity for having a protective shield and it pointed up the necessity for the use of a shield which was shown to be capable of design consistent with proper functioning. The evidence that such a protective shield could be fashioned was cogent.

In determining whether a machine is defective in design, the jury is entitled to weigh the ease of construction of a safety device against the magnitude of threatened harm in not constructing it. If the latter is of great magnitude and the former is relatively inconsequential, the trier may determine that the machine was defectively designed. The jury so found.

II.

We are not, of course, suggesting that a manufacturer is an insurer. We merely say that the plaintiff has sustained his proof. Defendant-appellant further maintains that the machine was not unreasonably dangerous within the meaning given to the term by the decision of Kirkland v. General Motors Corp., supra. The question is, would the ordinary user having ordinary knowledge contemplate that the device was unreasonably dangerous? All that we can say on this is that the characteristics of this machine were described in minute detail to the jury. Further photographs such as those appended to this opinion were submitted. As a result, the jury had before it knowledge that the machine was dangerous.

Is the fact that these defects were obvious a factor which diminishes its legal dangerousness as the defendant-appellant contends?4 If a device is dan*485gerous to life and limb to the degree that no amount of care on the part of the user can overcome the defect so as to prevent injury, the obviousness does not alleviate the danger. We have difficulty seeing how the knowledge of the dangerousness can alleviate the dangerous condition inasmuch as the performance by plaintiff of his assigned tasks subjected him to injury regardless of the care exercised.5

We are of the opinion that the manufacturer cannot escape liability by contending that the defect was obvious where, as here, knowledge of the highly hazardous condition cannot serve to prevent the injury since the plaintiff-appellee must work.

III.

There is an authority in Oklahoma which is closely parallel to the present one. It is the decision of the Oklahoma Supreme Court in Royse v. Stine, 473 P.2d 923 (Okl.1970). There, as here, the plaintiff was injured while forcing cotton seed hulls into an auger blade which conveyed the hulls into a special wagon. His foot slipped into the auger blade.. This case predated the adoption by Oklahoma of § 402A and it was therefore tried on a negligence theory. But even judged under this more difficult theory the Oklahoma court upheld liability, concluding that it was open to the jury to find that the defendant was negligent and that plaintiff was not contributorily negligent. Although this decision is not a products liability ease like the case at bar, it successfully serves to dispose of the contributory fault issue which defendant-appellant has sought in one way or another to interpose.

IV.

We have considered the defendant’s contention that it was error to allow plaintiff’s expert to testify. The argument boils down to the fact that, the expert was a mechanical engineer rather than an agricultural one. . This is a very thin line to draw. Who can say that an agricultural engineer, whatever that is, would be better qualified? Such a matter is in the broad discretion of the trial court.6 The expert was a professor of mechanical engineering at the University of Houston. He testified that he was particularly interested in conveying substances like grain from one place to another. He was also shown to have examined the design of the blower in question in some detail.

It cannot be said that the witnesses were lacking in the necessary qualifications. The weight of the evidence is for the jury to determine.

V.

Finally, it is argued that it was error to allow plaintiff to admit evidence as to the blower plaintiff’s employer used to complete the job the plaintiff had been doing. Particular objection is made to the evidence that the employer welded the grid on before commencing. This in our view does not violate the rule against showing repairs or showing an example of successful performance. This was not repair evidence. Instead, it *486was responsive to testimony on behalf of the defendant that a grid would render the machine ineffective. The court did not err.

We have considered the other points raised, namely, that it was error to allow testimony as to collateral source payments, and the plaintiff’s counsel was guilty of misconduct. Neither point has merit.

The judgment of the district court is affirmed.

Appendix A

*487Appendix B

ENOCH, Circuit Judge.

Plaintiff, Barbara F. Evans, personal representative of the Estate of Roy Evans, deceased, brought this action in the United States District Court to recover damages on behalf of the decedent’s widow and four dependent minor children, on the ground that his death was caused by the allegedly negligent design of the 1961 Chevrolet station wagon manufactured by the defendant, General Motors Corporation. Plaintiff’s amended complaint in three counts charges negligence, breach of implied warranty, and strict tort liability.

The amended complaint asserts that while decedent was driving across an intersection in the aforementioned station wagon, it was struck from the left side by another automobile, and that the left side of the station wagon collapsed in upon the decedent, inflicting fatal injuries because the station wagon was designed with an “X” frame which did not have side frame rails to protect a driver involved in side impact collisions. Plaintiff’s amended complaint incorporated a reprint of a publication in which a rival manufacturer advertises the alleged superiority of its perimeter frame over the “X” frame used by other automobile makers.

*824After pretrial conferences, oral argument, and submission of briefs, the District Court dismissed the amended complaint on the ground that each count failed to state a claim against the defendant upon which relief could be granted. This appeal followed.

Plaintiff’s theory is that the collision which occurred was a foreseeable emergency and that by omitting side frame rails, defendant created an unreasonable risk of harm to occupants of the automobile it manufactured.

Plaintiff asserts that defendant was negligent in designing and in failing to test the design of the automobile; that defendant breached implied warranties that the automobile was of merchantable quality and reasonably fit for use as an automobile; that defendant placed in the stream of commerce an automobile in a dangerous and defective condition in that it was equipped with an “X” frame lacking side frame protection, thus proximately causing the fatal injuries to the decedent when the automobile was involved in a broadside collision, for which the defendant is strictly liable to plaintiff.

The major question before us is the nature of the duty which an automobile manufacturer owes to users of its product. This presents an issue of law for the Court. Union Traction Co. of Indiana v. Berry, 1919, 188 Ind. 514, 520-521, 121 N.E. 655, 657, 124 N.E. 737; Kahn v. Chrysler Corporation, D.C., S.D., Tex. 1963, 221 F.Supp. 677, 678.

The defendant concedes that it had a duty to design its automobile to be reasonably fit for the purpose for which it was made, without hiding defects which would make it dangerous to persons so using it.

Plaintiff does not assert that defendant’s design could have functioned to avoid the collision. Plaintiff contends that in a trial plaintiff would prove, by expert opinion and subsequently adopted improvements in design by defendant and others, that the solid steel side rails of a perimeter frame provide added protection against impacts on the body sides. Plaintiff argues that the defendant’s “X” frame permitted the side of the automobile to collapse against the decedent when his station wagon was struck broadside by another vehicle. Plaintiff does not assert that the “X” frame caused the decedent’s automobile to be driven into the path of the striking car or prevented it from being driven out of that path. Nor does plaintiff contend that the decedent could not have been killed or injured in this same collision had the 1961 Chevrolet station wagon been designed with a perimeter frame.

A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle “more” safe where the danger to be avoided is obvious to all. Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E. 2d 802, 804. Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation of existing law. Campo v. Scofield, supra, 805.

Plaintiff’s reliance on Elliott v. General Motors Corp., 7 Cir., 1961, 296 F.2d 125, and MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, is misplaced. Elliott concerned a sharp edged splash shield, hidden from view, but placed where a mechanic would have to put his hands to repair the automobile. While repairing the automobile, Loraine Elliott extended his hand and arm through the splash shield opening, which was designed to allow a mechanic to gain entrance to the engine and oil pan from beneath the automobile. The dangerously sharp and defective edge severed nerves, tendons, muscles, and arteries, permanently disabling his arm and hand, MacPherson involved a defective automobile wheel which had been made by another and sold to the manufacturer who failed to inspect it. While the plaintiff in MacPher-son was riding in the automobile, it collapsed because of the defective wheel.

*825The other cases on which plaintiff relies are also distinguishable on their facts. We note a few examples. In J. I. Case Co. v. Sandefur, Inc., Indiana, 1964, 197 N.E.2d 519, it was necessary for the plaintiff to step on the cover of an auger in a farm combine to clear the hopper. It collapsed under him because of hidden defects: there was no supporting brace or safety clip, and the lumber and screws used were of insufficient strength. In McCloud v. Leavitt Corp., D.C., E.D., Illinois, 1948, 79 F.Supp. 286, a spectator was injured when the defective grandstand in which he was watching a game collapsed under him. In Carpini v. Pittsburgh & Weirton Bus Co., 3 Cir., 1954, 216 F.2d 404, a petcock used to drain the air chamber of the brake system of a bus was located too close to the ground. It broke off on debris in the street. The brakes failed. The driver lost control of the bus. In Ford Motor Co. v. Zahn, 8 Cir., 1959, 265 F.2d 729, the ashtray on the dashboard had a defectively jagged edge which inflicted injuries on a passenger when the automobile brakes were suddenly applied. In Goullon v. Ford Motor Co., 6 Cir., 1930, 44 F.2d 310, the rim of the steering wheel on a tractor broke in the driver’s hand.

The products involved in all these cases were unfit for their intended use and in precisely that respect were the cause of accidental injuries.

The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons.

We cannot agree with the plaintiff that the defendant had a duty to equip all its automobiles with side rail perimeter frames, or that such a duty can be inferred from the mere fact that some of the defendant’s, or some of its competitors’, automobiles are now made with side rails, or from the opinions of certain experts that perimeter frames are “safer” in a collision. Defendant had a duty to test its frame only to ensure that it was reasonably fit for its intended purpose.

Unlike- the defendants in Bird v. Ford Motor Co., D.C., W.D., N.Y., 1936, 15 F.Supp. 590; Baxter v. Ford Motor Co., 1932, 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521; Bahlman v. Hudson Motor Car Co., 1939, 290 Mich. 683, 288 N.W. 309, cited by the plaintiff, General Motors Corporation did not warrant its product to be free of the condition which actually caused the accident. In Bird and Baxter, the windshields which shattered and cut the plaintiffs in those cases, were expressly represented to be “shatterproof.” In Bahlman, the two-piece roof welded with a jagged seam that injured the plaintiff, was expressly represented to be a “seamless steel roof.”

It is not alleged that General Motors expressly warranted its automobile to have side rails or to be capable of protecting a driver in broadside collisions; nor can such warranty be implied from the allegations in plaintiff’s amended complaint.

Our study of all other points and authorities advanced in favor of plaintiff’s position discloses nothing that alters our conclusion that the judgment of the District Court must be affirmed.

Affirmed.

KILEY, Circuit Judge

(dissenting).

I respectfully dissent.

The opinion of the court decides that General Motors’ duty was, as it concedes, to design its automobile to be reasonably fit for the purpose for which it is made, and free from hidden defects; that notwithstanding General Motors’ foreseeability of possible broadside collisions, the “intended purpose” of the automobile does not include its participation in such collisions; that imposition of any requirements that automobiles be made “more” safe for collisions is a legislative function; and that the district *826court properly dismissed the complaint for failure to state a claim upon which relief could be granted.

The question before us is whether, assuming the truth of the well-pleaded allegations in the amended complaint, “it appears beyond all doubt” that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The amended complaint was in three counts, charging: negligence in design and testing of the 1961 Chevrolet; breach of the implied warranties of merchantability and fitness for the purpose of its manufacture; and strict liability of the manufacturer for a defective and dangerous automobile.

This is a diversity case; consequently Indiana law controls. No Indiana case has precisely decided the issue before us. But a United States District Court in Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.1965), and this court in Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir. 1965), as “Indiana courts” in diversity cases, participated in developing Indiana law in breach of warranty and products liability cases to meet changing conditions. In Greeno the court drew upon “available data” and cases from other jurisdictions for the statement of the rule eliminating the requirement of privity in product liability cases. In Dagley, 344 F.2d at 253, an action for breach of implied warranty, this court observed that the “historical concept of warranty,” which required privity of contract, was “outdated in view of the changing policies involved * * * and * * that the interests of society are best served by eliminating the requirement * * This court took this step as a sequel to its prior decision in Elliott v. General Motors Corporation, 296 F.2d 125 (7 Cir., 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962), eliminating the essential of privity in Indiana negligence actions, and that of J. I. Case Co. v. Sandefur, Inc., 197 N.E.2d 519 (1964), in which the Indiana Supreme Court did likewise.

The court in Greeno aptly stated, “The direction of the law is clear.” 237 F. Supp. at 432. The direction, in my opinion, leads to greater responsibility of manufacturers in designing, testing and manufacturing products, with a purpose of giving reasonable protection against harm to purchasers in the use of the products for their intended purposes. My view is that the Indiana courts would have the same opinion today on the same issue as that before us.

It is a matter of common knowledge that state and federal authorities, nongovernmental agencies, and legal and medical groups, as well as automotive producers, are currently engaged in research, discussion and hearings inspired by the appalling annual predictable rate of deaths, now more than 45,000 per year,1 and reported injuries in the hundreds of thousands, from accidents in automobile traffic. It is in the context of traffic realities that the issue before us, it seems to me, must be decided.

The opinion of the court does not state affirmatively what General Motors’ duty is. It rejects plaintiff’s theory that General Motors, foreseeing the possibility of broadside collisions, had the duty to include side rails in design of the Chevrolet frame, so as to provide reasonable protection against death or injury from broadside collisions; and it inferentially accepts General Motors’ theory that its duty was to design its automobile to be reasonably fit for the purpose for which it was made, without hidden defects rendering it dangerous to persons using it for its proper purpose, and that that purpose, as a matter of law, cannot contem*827plate that automobile’s participation in a collision.

In my view, General Motors’ duty was to use such care in designing its automobiles that reasonable protection is given purchasers against death and injury from accidents which are expected and foreseeable yet unavoidable by the purchaser despite careful use. See Restatement (Second), Torts § 395, especially comments 3 and k to this section, and § 398 (1965).

It follows that if plaintiff is able to prove that General Motors violated that duty in failing to include side frame rails in its design, and also proves the other elements entitling her to relief under any of the three counts, she would be entitled to recover unless General Motors can establish a defense to her claims. In any event, it is, in my view, error — once General Motors’ duty is recognized — to dismiss this complaint for failure to state a claim upon which relief can be granted. The trier of fact in each case, where prima facie showing is made, must decide whether the design protection is reasonable, depending on the character of the car involved and other relevant considerations.2

The court’s opinion notes that in the cases cited by plaintiff the actionable defect itself caused the injury. However, in Carpini v. Pittsburgh and Weirton Bus Co., 216 F.2d 404 (3rd Cir. 1954), an extraneous object cooperated with the faulty design of the petcock to cause the harm, and General Motors, a defendant there, did not dispute its duty of care to the user. And in Ford Motor Co. v. Zahn, 265 F.2d 729 (8th Cir. 1959), the Eighth Circuit Court of Appeals rejected Ford’s contention that it was not bound to foresee that another car would “suddenly dart” out of a side road in front of the Ford causing application of the brakes, which then propelled the plaintiff-passenger onto a defective ashtray, injuring his eye. Ford there conceded there was a duty of reasonable care in design and manufacture of its product.3

*828I recognize that safety standards for automobiles would normally be a legislative matter. The United States Senate is now considering the question of federal standards. The General Services Administration has itself set up standards for automobiles it will purchase. There is currently an abundance of books and magazine and newspaper articles, condemning, as well as defending, the record of manufacturers of automobiles in safety design and production. The particular issue before us is merely a reflection of the broad national issue being debated at this time. But the possibility of future adequate legislative standards does not remove the necessity of presently deciding whether plaintiff should or should not have an opportunity to prove the allegations made in the complaint.

I would reverse the judgment in favor of General Motors on its affirmative defenses to Counts I and II, and on its motion to dismiss Count III; and would remand for further proceedings.

FLOYD R. GIBSON, Circuit Judge.

The driver of an automobile claims injury as a result of an alleged negligent design of the steering assembly of the automobile. The alleged defect in design did not cause the accident, and the manufacturer asserts the law imposes no duty of care in the design of an automobile to make it more safe to occupy in the event of a collision. The trial court agreed, rendering summary judgment in favor of the manufacturer, reported at 274 F.Supp. 461 (D.C.Minn.1967). We reverse and remand.

The plaintiff-appellant,1 Erling David Larsen, received severe bodily injuries while driving, with the consent of the owner, a 1963 Chevrolet Corvair on February 18, 1964 in the state of Michigan. A head-on collision, with the impact oc*497curring on the left front corner of the Corvair, caused a severe rearward thrust of the steering mechansim into the plaintiff’s head. The Corvair was manufac^ tured by General Motors Corporation and liability is asserted against General Motors on an alleged design defect in the steering assembly and the placement or attachment of the component parts of the steering assembly to the structure of the Corvair.2 "

The plaintiff does not contend that the design caused the accident but that because of the design he received injuries he would not have otherwise received or, in the alternative, his injuries would not have been as severe. The rearward displacement of the steering shaft on the left frontal impact was much greater on the Corvair than it would be in other cars that were designed to protect against such a rearward displacement. The plaintiff’s complaint alleges (1) negligence in design of the steering assembly; (2) negligent failure to warn of the alleged latent or inherently dangerous condition to the user of the steering assembly placement; and (3) breach of express and implied warranties of merchantability of the vehicle’s intended use.

General Motors contends it “has no duty whatsoever to design and manufacture a vehicle * * * which is otherwise ‘safe’ or ‘safer’ to occupy during collision impacts,” and since there is no duty there can be no actionable negligence on its part to either design a safe or more safe car or to warn of any inherent or latent defects in design that might make its cars less safe than some other cars manufactured either by it or other manufacturers.

The District Court for the District of Minnesota rendered summary judgment in favor of General Motors on the basis that there was no common law duty on the manufacturer “to make a vehicle which would protect the plaintiff from injury in the event of a head-on collision” and dismissed the complaint. A timely appeal was filed. This is a diversity case in a requisite jurisdictional amount and the parties have stipulated that the law of Michigan applies.

Since a summary judgment was rendered on the pleadings and exhibits before the court under Rule 56, Fed.R.Civ.P., we will take the well pled allegations in the complaint at their face value and assume for purposes of discussion and decision that there was a defect in the design of the steering assembly of the Corvair. Then if there are no issues or any discernible theory on which the losing party could recover, a summary judgment is proper. However, a summary judgment proceeding does not provide a very satisfactory approach in tort cases. Williams v. Chick, 373 F.2d 330 (8 Cir. 1967).

The District Court found this case to be closely related to the factual situation of Evans v. General Motors Corporation, 359 F.2d 822 (7 Cir. 1966), cert. denied 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966), which held in a divided decision that a manufacturer is under no duty to make its automobile “accident-proof” or “fool-proof” nor to render its vehicle “more” safe where the danger to be avoided is obvious to all. The District Court discussed other cases, which will be set forth in this opinion, and concluded as follows:

“All of these factors when considered together lead to but one conclusion: The defendant G. M.’s duty toward the public is to design an automobile which is reasonably safe when driven and *498which contains no latent or hidden defects which could cause an accident and subsequent injury * * *. No contention is here made * * * that any design defect caused the accident which allegedly resulted in the plaintiff’s injuries. In view of this fact and because this Court believes that any standards in this area must be left to the Legislature, this court has no alternative but to find that the defendant was not negligent in its design and construction of the 1963 Corvair automobile in that it was under no duty to make a vehicle which would protect the plaintiff from injury in the event of a head-on collision.” 274 F.Supp. at p. 464.

The District Court also held that there was no duty to warn since the law only requires a warning when the defects would render the product unsafe for its intended use and that its intended purpose was transportation.

Both parties agree that the question of a manufacturer’s duty in the design of an automobile or of any chattel is a question of law for the court. The decisional law is in accord. Evans v. General Motors Corporation, supra; Schemel v. General Motors Corporation, 261 F.Supp. 134 (S.D.Ind.1966), aff’d 384 F.2d 802 (7 Cir. 1967); Kahn v. Chrysler Corporation, 221 F.Supp. 677 (S.D.Tex.1963).

General Motors contends that it has no duty to produce a vehicle in which it is safe to collide or which is accident-proof or incapable of injurious misuse. It views its duty as extending only to producing a vehicle that is reasonably fit for its intended use or for the purpose for which it was made and that is free from hidden defects; and that the intended use of a vehicle and the purpose for which it is manufactured do not include its participation in head-on collisions or any other type of impact, regardless of the manufacturer’s ability to foresee that such collisions may occur. General Motors cites as supporting its contention, Evans v. General Motors Corporation, supra; Willis v. Chrysler Corporation, 264 F.Supp. 1010 (S.D.Tex. 1967); Walz v. Erie-Lackawanna Railroad Company, CCH Prod.Liab.Rptr., ¶ 5722 (D.C.N.D.Ind.1967); Shumard v. General Motors Corporation, 270 F.Supp. 311 (S.D.Ohio 1967); Schemel v. General Motors Corporation, supra; Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950).

The plaintiff maintains that General Motors’ view of its duty is too narrow and restrictive and that an automobile manufacturer is under a duty to use reasonable care in the design of the automobile to make it safe to the user for its foreseeable use and that its intended use or purpose is for travel on the streets and highways, including the possibility of impact or collision with other vehicles or stationary objects. Plaintiff’s reliance is placed on Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959); Blitzstein v. Ford Motor Company, 288 F.2d 738 (5 Cir. 1961); Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4 Cir. 1962); Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (Mich.1959).

There is a line of cases directly supporting General Motors’ contention that negligent design of an automobile is not actionable, where the alleged defective design is not a causative factor in the accident. The latest leading case on this point is Evans v. General Motors Corporation, 359 F.2d 822 (7 Cir. 1966), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966). A divided court there held that General Motors in designing an “X” body frame without perimeter support, instead of an allegedly more safe perimeter body frame, was not liable for the death of a user allegedly caused by the designed defect because the defendant’s design could not have functioned to avoid the collision. The Court reasoned at pp. 824 and 825 of 359 F.2d:

“A manufacturer is not under a duty to make his automobile accident-proof or fool-proof; nor must he render the vehicle ‘more’ safe where the danger to be avoided is obvious to all. *499Campo v. Scofield, 1950, 301 N.Y. 468, 95 N.E.2d 802, 804. Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation of existing law. Campo v. Scofield, supra, 805.

******

“The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. * * * ”

A strong dissent was written by Judge Kiley in which he contended that General Motors had a duty in designing its automobile to use such care that reasonable protection would be given a user against death or injuries from foreseeable yet unavoidable accidents.

In General Motors Corporation v. Muncy, 367 F.2d 493 (5 Cir. 1966), cert. denied, 386 U.S. 1037, 87 S.Ct. 1476, 18 L.Ed.2d 600 (1967), the Court reversed the District Court judgment allowing recovery against General Motors for an allegedly negligent design of an ignition switch, which allowed the key to be removed when the motor was running. The Court held that under Texas law there was no liability for a defective design of the ignition switch and also found no actionable negligence in an alleged defective accelerator. No reasons are given for the decision on the ignition switch except that a state case involving the same parties had produced a similar ruling and a voluntary non-suit was taken before judgment was entered. The case was later refiled in the United States District Court. The Texas Court in Muncy v. General Motors Corp., 357 S.W.2d 430 (Tex.Civ.App.1962), held there was no showing of negligence as the parties had not shown “ * * * that the ear in question was dangerous if used properly and in the manner and for the purpose for which it was intended * * *». ancj further held that the car was not being lawfully used under Texas law, which provided that no person in charge of a vehicle shall permit it to stand unattended without first stopping the engine. The Court further noted that in the absence of evidence to the contrary it would not presume that General Motors designed the car for use in a manner violative of the law, or that it should have anticipated such illegal use as probable.

In Shumard v. General Motors Corporation, the United States District Court for the Southern District of Ohio, 270 F.Supp. 311 (1967), held there was no liability where the alleged design defects in a 1962 Corvair automobile caused it to erupt into flames on impact, killing the plaintiff’s decedent. That Court said: “ * * * No duty exists to make an automobile fireproof, nor does a manufacturer have to make a product which is ‘accident-proof’ or ‘fool-proof’. Campo v. Scofield, 301 N.Y. 468, 95 N.E. 2d 802 (1950) * * *” and relied upon the Evans case for its holding that:

“ * * * The duty of a manufacturer in the design of automobiles does not include designing a ‘fireproof’ automobile or an automobile in which passengers are guaranteed to be safe from fire. A manufacturer has no duty to design an automobile that will not catch fire under any circumstances. The manufacturer’s duty is to design an automobile which will not present a fire hazard during its normal intended operation.”

Another United States District Court for the Southern District of Texas in Kahn v. Chrysler Corporation, 221 F.Supp. 677 (1963) held that the manufacturer was under no duty to so design its automobiles so that it would be safe for a child to ride his bike into it while it was parked. The child there struck the protruding fins of a 1957 Dodge. Relying on the Texas case of Muncy v. General Motors Corp., supra, the Court stated the manufacturer’s duty of care «* * * -to be concomitant with normal use and for the ordinary purpose of the vehicle.” The United States District Court for the Southern District of *500Texas in Willis v. Chrysler Corporation, 264 F.Supp. 1010 (1967), in a Memorandum Opinion followed the rationale of the Evans and Kahn cases and held that Chrysler Corporation as an automobile manufacturer did not breach an implied warranty of fitness even though the design of the car allegedly allowed it to separate into two sections as a result of a high-speed collision. The predicate for its decision was that the design of the automobile was reasonably fit for the purpose for which it was intended, and the manufacturer’s duty did not extend to designing an accident-proof or fool-proof vehicle, nor was it under a duty to design an automobile that would maintain its structural integrity on severe impact, citing the Gossett and Evans cases among others.

Since General Motors concedes on the negligence count that its duty of care extends to designing and constructing an automobile that is reasonably safe for its intended use of being driven on the roads and highways and that contains no latent or hidden defects which could cause an accident and subsequent injuries, it would be superfluous to review the decisions holding manufacturers liable for negligent construction or design that were the proximate cause of an accident and subsequent injuries. Since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), the courts have consistently held a manufacturer liable for negligent construction of an automobile. Elliott v. General Motors Corporation, 296 F.2d 125 (7 Cir. 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959); Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959); Parker v. Ford Motor Company, 296 S.W.2d 35 (Mo.1956); see 78 A.L.R.2d 473, Anno.: Products Liability—Vehicles or Parts. And also other manufacturers, Lovejoy v. Minneapolis-Moline Power Implement Company, 248 Minn. 319, 79 N.W.2d 688 (1956) (broken flywheel on a tractor).

The Courts, however have been somewhat reluctant to impose liability upon a manufacturer for negligent product design in the automotive field. In Gossett v. Chrysler Corporation, 359 F.2d 84 (6 Cir. 1966) the Court reversed a judgment based on an alleged defectively designed truck hood latch that allowed the hood to spring open while the vehicle was in motion causing an accident, but did recognize a duty in connection with design, stating:

“The general rule may be stated as follows: It is the duty of a manufacturer to use reasonable care under the circumstances to so design his product as to make it not accident or foolproof, but safe for the use for which it is intended. This duty includes a duty to design the product so that it will fairly meet any emer~ gency of use which can reasonably be anticipated. The manufacturer is not an insurer that his product is, from a design viewpoint, incapable of producing injury.” (Emphasis supplied.)

The above statement is in line with the Restatement (Second), Torts, § 398 (1965), which reads:

“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.”

The early case of Davlin v. Henry Ford & Son, 20 F.2d 317, at p. 319 (6 Cir. 1927), though it did not permit recovery, did recognize the duty of care in design by stating:

“Its duty was to use reasonable care in employing designs, selecting materials, and making assemblies, in the construction of a tractor, which would fairly meet any emergency of use which could reasonably be anticipated.”

*501A pertinent case recognizing a duty of reasonable care in design is Carpini v. Pittsburgh and Weirton Bus Company, 216 F.2d 404 (3 Cir. 1954) where the Court permitted recovery for a defectively designed and placed pet cock in the undercarriage of a bus where the design and placement left the pet cock unprotected from debris on the road. The heavily overloaded bus in proceeding on a highway filled with rocks and debris, occasioned by a severe storm the night before, suffered a brake failure, causing an accident. The pet cock became disengaged by the debris, allowing the brakes to drain. In this case the defective design might be said to have caused the accident, though there was the questioned intervening cause of the improper use of the bus by overloading it. In any event this does not reach the plaintiff’s factual situation of where the alleged negligent design was not a causative factor in the accident, but is contended to have severely enhanced plaintiff’s injuries.

The Texas Court of Civil Appeals, in Railway Express Agency, Inc. v. Spain, 249 S.W.2d 644 (1952) sustained a judgment based on the negligent design of defendant’s trucks, which were so designed as not to permit the giving of hand signals when the door of the truck on the driver’s side was closed and noted that the concurring negligence of a third party which was required for defendant’s negligence to become operative did not relieve the defendant of liability for its own negligence in design.

A case closely bearing on this precise point is Ford Motor Company v. Zahn, 265 F.2d 729 (8 Cir. 1959) where the plaintiff lost sight of one eye on being thrown against a defectively designed ash tray having a jagged edge. The ash tray had nothing to do in a causative way of setting up an emergency braking situation, which in turn projected the plaintiff into the ash tray, but the Court recognized a duty to use reasonable care in design, recognized the foreseeability of injury resulting from a defective ash tray so placed, and also recognized the duty resting on the manufacturer to make reasonable inspections or tests to discover defects. Judge Matthes stated the rule at p. 731:

“By force of law there is imposed upon the manufacturer of an article for sale or use the duty to exercise reasonable care to prevent defective conditions caused by a miscarriage in the manufacturing process. This duty requires reasonable skill and care in the process of manufacture and for reasonable inspection or tests to discover defects.”

Generally, as noted in 76 A.L.R. 2d 93, Anno.: Products Liability—Duty As To .Design, the manufacturer has a duty to use reasonable care under the circumstances in the design of a product but is not an insurer that his product is incapable of producing injury, and this duty of design is met when the article is safe for its intended use and when it will fairly meet any “emergency of use” which is foreseeable. Davlin v. Henry Ford & Son, 20 F.2d 317 (6 Cir. 1927). This doctrine has even been extended to cover an unintended use where the injury resulting from that unintended use was foreseeable or should have been anticipated. Simpson Timber Co. v. Parks (9 Cir. 1965). (The original division’s opinion, reported in CCH Prod. Liab.Rptr. ¶ 5498 (1965), was reversed by the Court en Banc at 369 F.2d 324 (1966), which in turn was vacated by the Supreme Court and remanded to pass upon issues not covered in its prior opinion, 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1966)).

Accepting, therefore, the principle that a manufacturer’s duty of design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defects that could render it unsafe for such use, the issue narrows on the proper interpretation of “intended use”. Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out *502without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. O’Connell in his article “Taming the Automobile,” 58 Nw.U.L.Rev. 299, 348 (1963) cites that between one-fourth to two-thirds of all automobiles during their use at some time are involved in an accident producing injury or death. Other statistics are available showing the frequency and certainty of fatal and injury-producing accidents. See footnote 4. It should be recognized that the environment in which a product is used must be taken into consideration by the manufacturer. Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4 Cir. 1962).

We think the “intended use” construction urged by General Motors is much too narrow and unrealistic. Where the manufacturer’s negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called “second collision” of the passenger with the interior part of the automobile, all are foreseeable. Where the injuries or enhanced injuries are due to the manufacturer’s failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable.3 The sole function of an. automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art.

We do agree that under the present state of the art an automobile manufacturer is under no duty to design an accident-proof or fool-proof vehicle or even one that floats on water, but such manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.4

The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities *503of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts. We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel. Ford Motor Company v. Zahn, supra. Our streets and highways are increasingly hazardous for the intended normal use of travel and transportation. While advances in highway engineering and non-access, dual highways have considerably increased the safety factor on a miles traveled ratio to accidents, the constant increasing number of vehicles gives impetus to the need of designing and constructing a vehicle that is reasonably safe for the purpose of such travel. }At least, the unreasonable risk should be eliminated and reasonable steps in design taken to minimize the injury-producing effect of

This duty of reasonable cilre in design rests on common law negligence 5 that a manufacturer of an article should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury. The duty of reasonable care in design should be viewed in light of the risk. While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many common-sense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.

The courts since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F., 696 (1916) have held that a manufacturer of automobiles is under a duty to construct a vehicle that is free of latent and hidden defects. We can perceive of no significant difference in imposing a common law duty of a reasonable standard of care in design the same as in construction. A defect in either can cause severe injury or death and a negligent design defect should be actionable. Any design defecF, not causing the accident would not subject the manufacturer to liability for the entire damage, but the manufacturer should be liable for that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design. The manufacturer argues that this is difficult to assess. This is no persuasive answer and, even if difficult, there is no reason to abandon the injured party to his dismal fate as a traffic statistic, when the manufacturer owed, at least, a common law duty of reasonable care in the design and construction of its product. The obstacles of apportionment are not insurmountable. It is- done with regularity in those jurisdictions applying comparative negligence statutes and in other factual situations as condemnation cases, where in some jurisdictions the jury must assess the value of the land before and after a taking and then *504assess a special benefit accruing to the remaining property of the condemnee.

General Motors in arguing against what it views as an expanded duty of a care in design makes the statement that this duty “must be considered in its application to all products. Automobile manufacturers cannot be made a special class.” With this we quite agree. We think the duty of the use of reasonable care in design to protect against foreseeable injury to the user of a product and perhaps others injured as an incident of that use should be and is equally applicable to all manufacturers with the customary limitations now applied to protect the manufacturer in case of an unintended and unforeseeable use. The courts have imposed this duty, perhaps more readily against other manufacturers than against the automotive industry.6

We, therefore, do not think the automotive industry is being singled out for any special adverse treatment by applying to it general negligence principles in (1) imposing a duty on the manufacturer to use reasonable care in the design of its products to protect against an unreasonable risk of injury or enhancement of injury to a user of the product, and (2) holding that the intended use of an automotive product contemplates its travel on crowded and high speed roads and highways that inevitably subject it to the foreseeable hazards of collisions and impacts. Neither reason, logic, nor controlling precedents compel the courts to make a distinction between negligent design and negligent construction.

The manufacturer’s duty to use reasonable care in the design and manufacture of a product to minimize injuries to its users and not to subject its users to an unreasonable risk of injury in the event of a collision or impact should be recognized by the courts. The manufacturers themselves have, in various public utterances in discussing automotive safety, expressed their concern for making safer vehicles.7 And General Motors admits the foreseeability of accidents which are matters of public and common knowl*505edge over a long period of time.8 Legal acceptance or imposition of this duty would go far in protecting the user from., unreasonable risks. The normal risk of driving must be accepted by the user but there is no need to further penalize the user by subjecting him to an unreasonable risk of injury due to negligence in design.9

On the second count of plaintiff’s petition alleging negligence in failure to warn of an alleged dangerous condition in vehicle design the same principles would apply. We think a cause of action is alleged and that under the law the manufacturer has a duty to inspect and to test for designs that would cause an unreasonable risk of foreseeable injury. Ford Motor Company v. Zahn, supra. The failure to use reasonable care in design or knowledge of a defective design gives rise to the reasonable duty on the manufacturer to warn of this condition.

The duty of a manufacturer to test and to' warn of defects in its product needs little elaboration. The Restatement (Second), Torts, § 395, comment (f) (1965) reads:

“ * * * The particulars in which reasonable care is usually necessary for protection of those whose safety depends upon the character of chattels are * * * (4) the making of such inspections and tests during the course of manufacture and after the article is completed as the manufacturer should recognize as reasonably necessary to secure the production of a safe article. * * *»

See 2 Harper and James, “The Law of Torts,” § 28.4, p. 1541; 76 A.L.R.2d 15, Anno.: Products Liability — Duty to Warn. Almost any chattel or commodity is capable of inflicting injury; knives cut, axes split, dynamite explodes, food spoils, poison kills. Where the danger is obvious and known to the user, no warning is necessary and no liability attaches for an injury occurring from the reasonable hazards attached to the use of chattels or commodities; but where the dangerous condition is latent it should be disclosed to the user, and non-disclosure should subject the maker or supplier to liability for creating an unreasonable risk.

In Blitzstein v. Ford Motor Company, 288 F.2d 738, at p. 744 (5 Cir. 1961) the court held the evidence was sufficient to present a jury issue on whether the supplier Ford Motor Company was negligent in failing to exercise reasonable care to warn of a dangerous condition caused by^ designing a non-ventilated motor car trunk in which an undetectable leaky gas_ tank was located, stating:

“We think that a jury could reasonably have found that the American Ford Company was negligent in marketing a product which was inherently dangerous, of which danger it should have been aware from its long experience in the design and manufacture of automobiles, and that American Ford failed to exercise reasonable care to inform the buying public of this dangerous condition. * * * ”

If, because of the alleged undisclosed defect in design of the 1963 Corvair steering assembly, an extra hazard is created over and above the normal hazard, General Motors should be liable *506for this unreasonable hazard. Admittedly, it would not sell many cars of this particular model if its sale’s “pitch” included the cautionary statement that the user is subjected to an extra hazard or unreasonable risk in the event of a head-on collision. But the duty of reasonable care should command a warning of this latent defect that could under certain circumstances accentuate the possibility of severe injury. See 2 Harper and James, “The Law of Torts,” § 28.3-28.9.

On the issue of strict liability or implied warranty of merchantability for intended use, we make no comment as our holding of sufficiency of counts one and two are dispositive. The doctrine of strict liability is one of policy for the various states and the National Congress, and we do not think there has been a sufficient showing on the Michigan law as respects this point, particularly in the automotive field. The Piercefield case cited in footnote 5 relates to an inherently dangerous explosive, and we do not know whether the Michigan courts would extend this doctrine to automobiles, which the courts have at times viewed both as an inherently dangerous instrument and not an inherently dangerous instrument. See, Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (Mich. 1959) (an automobile with defective brakes is a dangerous instrumentality), and Gossett v. Chrysler Corporation, 359 F.2d 84 (6 Cir. 1966) (an automobile is not a dangerous instrumentality under Ohio law.)

General Motors contends that any safety standards in design and equipment should be imposed as envisioned by the National Traffic and Motor Vehicle Safety Act of 1966 (Pub.L. 89-563), 80 Stat. 718, 15 U.S.C.A. § 1381 et seq. Recognizing the need to reduce traffic accidents and deaths and injuries resulting therefrom, Congress found it necessary to establish motor vehicle safety standards, and by this Act set up the machinery and administrative process to establish minimum safety standards. The purpose of this Act is manifest and the Congress recognizes in § 1391(1) that the public should be protected against unreasonable risks of accidents occurring as a result of the design, construction or performance of motor vehicles and also be protected against unreasonable risk of death or injury in the event accidents do occur. Section 108(c) of the Act, 15 U.S.C. § 1397(c), expressly negatives any intention of Congress to acquire exclusive jurisdiction in this field and leaves the common law liability intact. Subsection (c) reads: “(c) Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.”

It is apparent that the National Traffic Safety Act is intended to be supplementary of and in addition to the common law. of negligence and product liability. (The common law is not sterile or rigid and serves the best interests of society by adapting standards of conduct and responsibility that fairly meet the emerging and developing needs of our time?\ The common law standard of a duty to use reasonable care in light of all the circumstances can at least serve the needs of our society until the legislature imposes higher standards or the courts expand the doctrine of strict liability for tort. The Act is a salutary step in this direction and not an exemption from common law liability.

For the reasons set forth, we reverse and remand for proceedings not inconsistent with this opinion.