Re: Unsafe At Any Speed: The Designed-In Dangers of the Amer
Posted: Tue Oct 29, 2013 9:19 pm
PART 1 OF 2
Chapter 2: Disaster Deferred: Studies in Automotive Time Bombs
The American automobile is produced exclusively to the standards which the manufacturer decides to establish. It comes into the marketplace unchecked. When a car becomes involved in an accident, the entire investigatory, enforcement and claims apparatus that makes up the post-accident response looks almost invariably to driver failure as the cause. The need to clear the highways rapidly after collisions contributes further to burying the vehicle's role. Should vehicle failure be obvious in some accidents, responsibility is seen in terms of inadequate maintenance by the motorist. Accommodated by superficial standards of accident investigation, the car manufacturers exude presumptions of engineering excellence and reliability, and this reputation is accepted by many unknowing motorists.
How many victims of Corvair tuck-under -- those who survived -- know why their vehicle suddenly went out of control? General Motors' Charles Chayne can say, with little fear of contradiction by consumers, that "excellence of automotive engineering is almost taken for granted by the public." Beggars at the trough have no alternative.
Mr. Chayne had occasion to appear before legislative committees between 1956 and 1963 as General Motors' chief safety spokesman. Between his long and well illustrated presentations of company policy and performance, and his guided tours of legislators around company proving grounds, he was never asked about the matter of the 1953 Buick Roadmaster. The Roadmaster episode, unlike other operating failures, became a matter of public record only because of a private lawsuit -- scarcely the best means for informing the public about a booby trap that suddenly leaves a two-ton automobile without brakes.
Robert Comstock, a veteran garage mechanic at the Lawless Buick Company in Ferndale, Michigan, found out what a brakeless Roadmaster felt like. On the morning of January 18, 1954, be was putting a license plate on another car inside the garage when a Roadmaster driven by Clifford Wentworth, the assistant service manager, ran into his leg and crushed it Wentworth had taken the car from its owner, Leon Friend, a few minutes earlier. Friend was complaining that the day before he had experienced a sudden and total loss of braking power, luckily at a very low speed. When Wentworth got into the car to move it to a service stall, he forgot there were no brakes and rammed into Comstock. Wentworth was shaken deeply enough by this tragedy to leave his job. But the story he told the Wayne County Circuit Court when Comstock and his workmen's compensation carrier sued him and General Motors was a horror tale of larger proportions than this single case.
Here are Wentworth's exchanges with Comstock's lawyer and the judge:
On the witness stand Wentworth displayed strong concern that the Buick division could not supply him with parts to repair the brake defect. It was not until November 1953 -- well over a year after the offending 1953 Roadmasters were placed on the market -- that Buick began to ease this anguish of its dealers. Elmer Krause, the general service manager of Buick, testified that replacement kits for the defective parts were at that time manufactured. He declared that Buick made 7,988 of these kits available to its dealers in the fourth quarter of 1953, and that 44,126 such kits were produced in the first quarter of 1954. In addition, Buick sent to its dealers throughout the country a special bulletin entitled "Empty Power Brake Reservoirs: 1953 power brake-equipped Buicks." The date of the bulletin was November 2, 1953. Along with the failure of the "O" ring seal in the master brake cylinder, this bulletin revealed another cause of the Roadmaster's brake failure: "This trouble has been diagnosed as a poor fit between the base of the hydraulic cylinder casting and the vacuum can... This then does not permit equal pressure to the 'O' ring seal between the two surfaces and allows vacuum to pull oil from the reservoir pipe past the threads of the retainer holding the seal and primary cup -- then into the can, up the vacuum pipe, and into the engine."
But the principal defect -- the failure of the "O" ring seal -- was identified by Charles Holton, Buick's brake engineer. It was this failure which, without warning, would find the driver pressing his brake foot pedal clear to the floor boards without any braking power resulting. Apparently, to Buick's way of thinking, the manufacturer of such a vehicle was not under any obligation to warn its car buyers of this hazard. Mr. Krause's testimony is right to the point:
Judge Thomas Murphy pressed this inquiry further:
In view of the notorious pressure and manipulation of automobile dealers by car manufacturers, Mr. Krause's interposition of dealer independence as a defense for Buick's irresponsibility seems less than charitable. His statement that Buick did not know who all the owners were is hardly straightforward; dealers have lists of all new car buyers, and their addresses are available to the company. While a small percentage of new Buick resales by their original owners !night have made location of these second owners difficult, the overwhelming majority were within reach of the mails. But knowing the names of the owners was not really the problem. The obstacle was, as Charles Holton conceded in court, that Buick does not under any circumstances send letters directly to owners. Nor, according to Mr. Krause, did the Buick division ask its dealers to get these automobiles hack for repair. This statement contrasts with Mr. Wentworth's testimony that Buick did request such action, hut only on condition that the owners were not made aware of the problem.
The evidence seems to favor Mr. Wentworth's version. Testimony in his case showed that the replacement unit provided by Buick was without charge to the owner and that Buick paid the labor cost of installation.
In spite of all the evidence pointing to the negligence of General Motors, Mr. Comstock lost his case. Lawyers for General Motors asked and received a directed verdict right after the plaintiff rested his case. In his opinion, Judge Murphy said it was his belief that General Motors was negligent in not notifying Mr. Friend to have the brakes repaired. But he thought that Mr. Wentworth's action of driving the car without brakes into Comstock's leg was "a new and independent proximate cause of the injury," which superseded the negligence of General Motors.
Comstock appealed to the supreme court of Michigan and set the stage for a memorable opinion by a unanimous court. Justice Edwards rendered a decision overruling the trial judge and sending the case back for a new trial. His words defined certain standards which seem almost elementary, yet which do not operate today:
Justice Edwards' opinion, rendered on November 25, 1959, sent the case back for a new trial. But General Motors was in no mood to risk another trial against the background of the stinging rebukes and strict guidelines of the supreme court of Michigan. The company settled with Comstock for $75,000 as compensation for the loss of his leg.
The Comstock case brought out facts revealing the utter abdication of responsibility and a deliberate withholding of lifesaving facts that would have prompted, in other fields of public safety, an investigation by authorities. But the Comstock decision had no impact on public policy. General Motors later settled a case in Pennsylvania involving an engineer whose Roadmaster brakes failed on a hill and sent him to his death. Beyond these two cases, the company emerged unscathed. There was no publicity.
However neglected the lesson of Comstock has been by public agencies, it has become a keystone case for attorneys representing the car manufacturers. Recently, these lawyers seem to have made their voices heard at Chrysler and Ford to the point where the watchword has become, "Automotive danger requires warning." In October 1964 the Ford Motor Company mailed a letter to some 30,000 owners of the 1965 full-sized Fords. The letter said: "In order to provide you with the highest quality product available, the Ford Motor Company has decided to improve the rear suspension. arm attachment by adding a re-enforcement bracket to each side.... We would like you to bring your Ford car up to current specification and appreciate your cooperation in making your car available to your Ford dealer for that purpose."
These are soothing words, more attuned to the ear of a fastidious car owner than to the motorist who might simply want to stay alive. They hardly convey the disaster which might occur if a suspension arm were to break loose from the chassis frame and lead to the vehicle's veering wildly out of control. When asked for further elaboration by the Chicago Daily News, R. C. Graham, national service operations manager of Ford division, replied: "We do not consider the modification II safety factor." Another Ford spokesman, responding to a similar inquiry by Consumers Union, described the offered improvement as nothing more than a refinement to preserve "a quiet ride." The same spokesman said that he did not know how many of the 30,000 Fords which slipped past factory inspectors have had their rear suspension arms reinforced.
In November 1964, Chrysler Corporation sent only to its dealers a bulletin urging them to recall for inspection certain 1965 Plymouth Furys, Chryslers, and full-sized Dodges (denoted by serial numbers) to determine whether the bracket holding the steering gear needed rewelding. As in the Ford case, some 30,000 cars were involved. To Chrysler's credit, it admitted that safety was a consideration in sending out its bulletin. After all, a vehicle's handling could become somewhat difficult should the steering gear break loose. But the company made no attempt to get in touch directly with the car buyer or find out how many unmodified cars were not brought back to dealers.
Consumers Union's automotive consultants considered the Ford case more serious than the Chrysler one. Yet Ford stuck to its story that the letters were sent for the purpose of preserving "a quiet ride."
The fact that automobiles are produced with faulty features or components is commonplace knowledge to those working in the industry. Although he tried later to qualify his statement in an interview with the Wall Street Journal, L. Ralph Mason, manufacturing manager of the Chevrolet division, stated unequivocally in a written message to Chevrolet plant supervisors, "I am deeply concerned about the quality we are building in our cars today." He had good reason to be. The industry's 1965 models fell to new depths of shoddy workmanship. Consumer Reports summarized for its readers the findings of its automobile testing specialists: "The condition of the 1965 cars Consumers Union has bought for test is about the worst, so far as sloppiness in production goes, in the whole ten-year stretch of deterioration that began in 1955. the first year in which U.S. new car sales first approached eight million. Complaint in the trade about the condition of the cars as delivered began to get bitter then and it has continued to be bitter ever since."
Tests of the 1963 models purchased at random by Consumers Union had resulted in thirty-two of thirty-two cars displaying troubles in the first 5000 miles of driving. The defects included rain leaks, a window running out of its channel, door handles that fell off, a broken distributor cap, a speedometer needle that fell back to zero and remained there, a broken seat adjuster, an ignition lock that wouldn't lock, a door that wouldn't latch, engines that leaked oil, directional signals that wouldn't cancel, a grossly inaccurate gas gauge, front wheels out of alignment, and headlights, as the late Mildred Brady of Consumers Union put it, "that aimed at the ground or at the eyes of approaching motorists Or at birds in trees."
Consumers Union's testing facilities in Connecticut are thorough as far as they go, but they are limited by the budgetary considerations of an organization whose only income is subscription payments for its magazine. Each car is tested for a few thousand miles at most. The more latent defects, such as early metal fatigue of suspension arms or rusting-through of hydraulic lines, that would appear on cars driven by ordinary motorists, are not likely to show up and be recorded for the public's safety information.
Some of the most detailed documentation publicly available about defective vehicle construction comes out of litigation against the manufacturer by injured parties. Highly persuasive evidence leading to settlements or verdicts against car makers has involved new cars with headlight failures, leakage of gasoline fumes causing an explosion, a dangerously positioned petcock leading to brake failure on a bus, stuck accelerators, hood latch defects allowing the hood to rear up and slam back through the windshield, defectively designed brakes and steering wheels, door latch and door binge failure. Other cases have come to final judicial decision or have been settled in favor of the plaintiff before the end of trial.
The issue in these cases revolved around either negligent design or negligent construction by the manufacturer. Consequently, these individual cases centering on a particular defect of a particular model cannot be simply dismissed as non-recurring single instances. A "design defect" by definition occurs on all vehicles of that make or model; a "construction defect," arising out of a mass production assembly line, points to a substantial number of vehicles similarly afflicted -- as illustrated above by Ford's rear suspension arm and Chrysler's steering wheel bracket.
A count of court decisions certainly does not constitute a representative sample either of the kind or frequency of vehicle defects. The formidable course that ends with a jury verdict is only, taken in cases that are lucky enough to have extant physical evidence, an intransigent defendant, imaginative counsel and, In most instances, little or no insurance coverage. But the fact that so many of the design defects that are revealed must come to light in court is a severe commentary on how superficially our society evaluates the vehicles role in accidents and injuries. It contrasts sharply with rail, air and marine design hazards which are meticulously investigated and publicly documented by government authorities.
The Senate hearings on automobile safety held in July 1965 elicited testimony from the manufacturers that indicated frequent written notification of dealers concerning defective conditions of new cars, together with corrective instruction and repair kits. (In the past it has been customary for the manufacturer to give the dealer oral notice, especially when the defect was serious and latent.)
Only in a few instances have the manufacturers aimed these "campaigns" directly toward the new car owners. There is no evidence that the manufacturers keep records concerning the number of car owners whose cars are not corrected. A substantial number of motorists are never reached by the dealers, who do not relish advertising any defects of their cars In the local community and who often are instructed by the companies only to make the correction if the customer brings his car in on another matter.
With every new model year, it must be presumed, on the basis of the evidence dealing with breakdowns in product quality, thousands of drivers are driving defective new cars that are likely to be involved in accidents. Hundreds of dealers know this, but are either obeying company orders or are protecting their own interests by remaining silent.
***
The 1953 Roadmaster case, the Ford suspension arm, and the Chrysler steering wheel bracket are evidence of breakdown in production quality control Even more insidious are hazards that are the products of design. Born of deliberate knowledge, these hazards are far less likely to be admitted by car makers when they are confronted with substantial evidence of their danger. And, of course, motorists are not warned of these hazards in owner's manuals.
The connection between design defects and driver misjudgment or uncontrollable vehicle behavior is so subtle that neither the accident investigator nor the operator is aware of this connection in collisions. Automatic transmission defects illustrate this point with spectacularly tragic consequences. With more and more vehicles employing automatic transmissions, the occurrence of the "engine-powered runaway accident" is rising alarmingly. These accidents display a similar pattern. A vehicle starting from a standstill or at a very low speed careens or lurches completely out of control with startling unexpectancy. For example:
• A young lady enters her garage and gets into her car to go to work. An instant later the car plummets in the wrong direction straight through the back end of the garage.
• A middle-aged woman is maneuvering her car out of a parked position on a busy main street; suddenly the car shoots forward across the street over the sidewalk and crashes fifty feet through a store window, narrowly missing a number of pedestrians and store clerks.
• An automobile is coming out of a parking garage; abruptly it lurches forward and then careens wildly, killing or injuring pedestrians and patrons of a restaurant.
• A woman shopper is trying to back up her car from a street parking area. The automobile's front wheels are against the curb. On pressing tile accelerator to ease out backwards, the vehicle does not respond; the driver presses down further on the gas. The car jumps the curb, crosses an alley to a nearby house and kills a couple sunning themselves in their own back yard.
• A couple drives into a lumber yard. The husband gets out of the car and notices that his wife has stopped three feet short of a marked area. He asks her to pull up the required distance. She shifts to what she thinks is the forward gear. (The car door is open, and he is guiding her.) The car backs up instead; the open door knocks him down and the car runs over him and kills him.
These are actual cases illustrating the common transmission-induced accidents which trap the driver. They occur because of negligent design of the automatic transmission shift patterns. The driver is charged with reckless driving or negligent manslaughter. Rarely does the police officer recognize that the accident he is investigating proceeded from a built-in design hazard that materialized.
In many instances these "drivers errors" are the result of confusion over the bewildering variety of automatic shifting devices offered in different makes and models of automobiles.
Chapter 2: Disaster Deferred: Studies in Automotive Time Bombs
The American automobile is produced exclusively to the standards which the manufacturer decides to establish. It comes into the marketplace unchecked. When a car becomes involved in an accident, the entire investigatory, enforcement and claims apparatus that makes up the post-accident response looks almost invariably to driver failure as the cause. The need to clear the highways rapidly after collisions contributes further to burying the vehicle's role. Should vehicle failure be obvious in some accidents, responsibility is seen in terms of inadequate maintenance by the motorist. Accommodated by superficial standards of accident investigation, the car manufacturers exude presumptions of engineering excellence and reliability, and this reputation is accepted by many unknowing motorists.
How many victims of Corvair tuck-under -- those who survived -- know why their vehicle suddenly went out of control? General Motors' Charles Chayne can say, with little fear of contradiction by consumers, that "excellence of automotive engineering is almost taken for granted by the public." Beggars at the trough have no alternative.
Mr. Chayne had occasion to appear before legislative committees between 1956 and 1963 as General Motors' chief safety spokesman. Between his long and well illustrated presentations of company policy and performance, and his guided tours of legislators around company proving grounds, he was never asked about the matter of the 1953 Buick Roadmaster. The Roadmaster episode, unlike other operating failures, became a matter of public record only because of a private lawsuit -- scarcely the best means for informing the public about a booby trap that suddenly leaves a two-ton automobile without brakes.
Robert Comstock, a veteran garage mechanic at the Lawless Buick Company in Ferndale, Michigan, found out what a brakeless Roadmaster felt like. On the morning of January 18, 1954, be was putting a license plate on another car inside the garage when a Roadmaster driven by Clifford Wentworth, the assistant service manager, ran into his leg and crushed it Wentworth had taken the car from its owner, Leon Friend, a few minutes earlier. Friend was complaining that the day before he had experienced a sudden and total loss of braking power, luckily at a very low speed. When Wentworth got into the car to move it to a service stall, he forgot there were no brakes and rammed into Comstock. Wentworth was shaken deeply enough by this tragedy to leave his job. But the story he told the Wayne County Circuit Court when Comstock and his workmen's compensation carrier sued him and General Motors was a horror tale of larger proportions than this single case.
Here are Wentworth's exchanges with Comstock's lawyer and the judge:
Counsel: Now, did you find any complaints or anything wrong with the power brake units in the 1953 Buick automobiles?
Wentworth: Yes sir.
Counsel: When did you first discover anything wrong?
Wentworth: Shortly after the cars began using power brake systems.
Counsel: And can you tell us about when these 1953 Buicks with power brakes came out?
Wentworth: It would be in the fall. I don't know the exact date.
The Court: Fall of 1952?
Wentworth: Yes, I believe so.
Counsel: And about how soon after that did you begin to find trouble?
Wentworth: A matter of weeks, I believe. Loss of fluid and failure of the brakes. The 'O' ring sealer would fail and fluid would be sucked into the engine and burned with the gasoline.
Counsel: Do I understand correctly in a power brake unit you have a master cylinder with fluid in it?
Wentworth: Yes sir.
Counsel: You have a sort of plunger, is that right?
Wentworth: That is right.
Counsel: You press the brakes, the plunger goes down and puts the fluid under pressure?
Wentworth: That is correct.
***
Counsel: This fluid is distributed by pipes to the four wheels of the car, is that correct?
Wentworth: Yes.
Counsel: And that pressure is distributed to each of the four wheels where it operates on each one of the brakes?
Wentworth: Yes, sir.
Counsel: The 'O' ring sealer would be what?
Wentworth: A sealer between the vacuum cylinder and master cylinder.
***
Counsel: Now, the motor sucking the fluid out of the cylinder would cause the fluid to disappear, is that correct?
Wentworth: That is correct.
Counsel: And when the fluid disappeared, what happened to the brakes?
Wentworth: The brakes were lost immediately.
***
Counsel: Did the Lawless Company sell many cars equipped with this kind of unit?
Wentworth: Many cars.
Counsel: How frequently did the buyers complain?
Wentworth: Well, I don't know the exact number, but we couldn't get parts fast enough to repair them, sir.
***
Counsel: How is it you say two or three weeks or months after, a month or two after the model was out you got word from General Motors to get all these cars in, and they were worried about it, and ten months went by before anything was ever said to Mr. Friend?
Wentworth: I could not attempt an active mailing campaign to get these customers in. People as they came in were told.
The Court: You called him, didn't you?
Wentworth: He contacted me first with brake trouble. Then there were telephone conversations.
The Court: You mean in that ten months' time you hadn't ever called him up?
Wentworth: I could have.
***
The Court: You said Buick was very much disturbed about this and wanted to get in touch with everybody immediately?
Wentworth: This is correct.
The Court: Ten months went by and you never did anything about this?
Wentworth: Because I was not allowed a campaign to call these people or mail anything to them.
The Court: They asked you to call them.
Wentworth: They said to get these cars whenever you could get your hands on them. When a customer didn't come around I couldn't look up the thing. I thought it was Buick's responsibility....
The Court: Who said you couldn't send letters?
Wentworth: The Service Department at Buick. It was a hush thing. They didn't want the public to know the brakes were bad and they were very alarmed.
***
The Court: If you don't mind I would like to ask a question. You said you were notified shortly after this model was out that when anybody brought their car in to make sure they didn't go out without having the brakes fixed?
Wentworth: We were notified to get these cars in, but I couldn't get parts, sir, so it dragged on and on.
The Court: What happened when cars came in?
Wentworth: They sat, usually.
The Court: What if somebody came in, did you tell them?
Wentworth: No. I was looking after the best interests of my boss and General Motors. I certainly didn't want to ruin their sales.
The Court: If a man came in with these kind of brakes, the brakes that were on this 1953 model, you said they told you it was a dangerous condition, and any time they came in to see that the brakes were fixed, or tell them about it?
Wentworth: If I told the man I couldn't fix it I was in a lot of trouble. What could I do? We couldn't get parts.
The Court: You mean even if he came in to have his 1,000 mile checkup, like Mr. Friend in June, or came back after his vacation in July or August, you didn't say anything to him about it because you did not have the parts?
Wentworth: That is right.
The Court: Even though you knew it was a very dangerous condition and people might be killed?
Wentworth: Like everything else, and you can get testimony from any of the boys working with me that I was terribly alarmed.... I don't run General Motors.
On the witness stand Wentworth displayed strong concern that the Buick division could not supply him with parts to repair the brake defect. It was not until November 1953 -- well over a year after the offending 1953 Roadmasters were placed on the market -- that Buick began to ease this anguish of its dealers. Elmer Krause, the general service manager of Buick, testified that replacement kits for the defective parts were at that time manufactured. He declared that Buick made 7,988 of these kits available to its dealers in the fourth quarter of 1953, and that 44,126 such kits were produced in the first quarter of 1954. In addition, Buick sent to its dealers throughout the country a special bulletin entitled "Empty Power Brake Reservoirs: 1953 power brake-equipped Buicks." The date of the bulletin was November 2, 1953. Along with the failure of the "O" ring seal in the master brake cylinder, this bulletin revealed another cause of the Roadmaster's brake failure: "This trouble has been diagnosed as a poor fit between the base of the hydraulic cylinder casting and the vacuum can... This then does not permit equal pressure to the 'O' ring seal between the two surfaces and allows vacuum to pull oil from the reservoir pipe past the threads of the retainer holding the seal and primary cup -- then into the can, up the vacuum pipe, and into the engine."
But the principal defect -- the failure of the "O" ring seal -- was identified by Charles Holton, Buick's brake engineer. It was this failure which, without warning, would find the driver pressing his brake foot pedal clear to the floor boards without any braking power resulting. Apparently, to Buick's way of thinking, the manufacturer of such a vehicle was not under any obligation to warn its car buyers of this hazard. Mr. Krause's testimony is right to the point:
Counsel: Mr. Krause, did the Buick Motor Division ever contact the owners of these cars?
Krause: No, sir.
Counsel: Didn't advertise what the conditions were?
Krause: No, sir.
Counsel: Were any parts ever sent to a dealer as replacement unless he asked for them?
Krause: No, sir.
Counsel: I take it nothing was done at all by the Buick Motor Company or Buick division of General Motors unless and until the parts were asked for and then they were given, if possible?
Krause: The parts were ordered by the dealer and shipped to the dealer by us.
Counsel: That is all the Buick Company did?
Krause: Well, other than put out the technical information such as the bulletin you just read there.
Judge Thomas Murphy pressed this inquiry further:
The Court: You didn't call them up and say, get all these cars in and have them repaired?
Krause: No, sir.
Counsel: Why not?
Krause: Well, in the first place that is the obligation of the dealer, and in the second place we don't know who all the owners are or where they are.
Counsel: Did they ever do anything to find out?
Krause: We have no right to tell the dealer how to run his business. He is an independent businessman.
Counsel: But did you do anything to find out?
Krause: No.
In view of the notorious pressure and manipulation of automobile dealers by car manufacturers, Mr. Krause's interposition of dealer independence as a defense for Buick's irresponsibility seems less than charitable. His statement that Buick did not know who all the owners were is hardly straightforward; dealers have lists of all new car buyers, and their addresses are available to the company. While a small percentage of new Buick resales by their original owners !night have made location of these second owners difficult, the overwhelming majority were within reach of the mails. But knowing the names of the owners was not really the problem. The obstacle was, as Charles Holton conceded in court, that Buick does not under any circumstances send letters directly to owners. Nor, according to Mr. Krause, did the Buick division ask its dealers to get these automobiles hack for repair. This statement contrasts with Mr. Wentworth's testimony that Buick did request such action, hut only on condition that the owners were not made aware of the problem.
The evidence seems to favor Mr. Wentworth's version. Testimony in his case showed that the replacement unit provided by Buick was without charge to the owner and that Buick paid the labor cost of installation.
In spite of all the evidence pointing to the negligence of General Motors, Mr. Comstock lost his case. Lawyers for General Motors asked and received a directed verdict right after the plaintiff rested his case. In his opinion, Judge Murphy said it was his belief that General Motors was negligent in not notifying Mr. Friend to have the brakes repaired. But he thought that Mr. Wentworth's action of driving the car without brakes into Comstock's leg was "a new and independent proximate cause of the injury," which superseded the negligence of General Motors.
Comstock appealed to the supreme court of Michigan and set the stage for a memorable opinion by a unanimous court. Justice Edwards rendered a decision overruling the trial judge and sending the case back for a new trial. His words defined certain standards which seem almost elementary, yet which do not operate today:
The braking system is obviously one of the most crucial safety features of the modem automobile. The greatly increased speed and weight of a modem automobile are factors which must be considered in relation to the care which would be reasonable for a manufacturer to use in designing, fabricating, assembling, and inspecting a power brake. A modem automobile equipped with brakes which fail without notice is as dangerous as a loaded gun ...
Defendant's Buick division warned its dealers. It did not warn those into whose hands they had placed this dangerous instrument and whose lives (along with the lives of others) depended upon defective brakes which might fail without notice.
In our view, the facts in this case imposed a duty on defendant to take all reasonable means to convey effective warning to those who had purchased '53 Buicks with power brakes when the latent defect was discovered....
If such a duty to warn of a known danger exists at point of sale, we believe a like duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. This General Motors did not do....
This record shows that Friend took good care of his automobile. Prompt warning to him would in all likelihood have meant repair before any brake failure occurred. Prompt warning could easily have prevented this accident.
Justice Edwards' opinion, rendered on November 25, 1959, sent the case back for a new trial. But General Motors was in no mood to risk another trial against the background of the stinging rebukes and strict guidelines of the supreme court of Michigan. The company settled with Comstock for $75,000 as compensation for the loss of his leg.
The Comstock case brought out facts revealing the utter abdication of responsibility and a deliberate withholding of lifesaving facts that would have prompted, in other fields of public safety, an investigation by authorities. But the Comstock decision had no impact on public policy. General Motors later settled a case in Pennsylvania involving an engineer whose Roadmaster brakes failed on a hill and sent him to his death. Beyond these two cases, the company emerged unscathed. There was no publicity.
However neglected the lesson of Comstock has been by public agencies, it has become a keystone case for attorneys representing the car manufacturers. Recently, these lawyers seem to have made their voices heard at Chrysler and Ford to the point where the watchword has become, "Automotive danger requires warning." In October 1964 the Ford Motor Company mailed a letter to some 30,000 owners of the 1965 full-sized Fords. The letter said: "In order to provide you with the highest quality product available, the Ford Motor Company has decided to improve the rear suspension. arm attachment by adding a re-enforcement bracket to each side.... We would like you to bring your Ford car up to current specification and appreciate your cooperation in making your car available to your Ford dealer for that purpose."
These are soothing words, more attuned to the ear of a fastidious car owner than to the motorist who might simply want to stay alive. They hardly convey the disaster which might occur if a suspension arm were to break loose from the chassis frame and lead to the vehicle's veering wildly out of control. When asked for further elaboration by the Chicago Daily News, R. C. Graham, national service operations manager of Ford division, replied: "We do not consider the modification II safety factor." Another Ford spokesman, responding to a similar inquiry by Consumers Union, described the offered improvement as nothing more than a refinement to preserve "a quiet ride." The same spokesman said that he did not know how many of the 30,000 Fords which slipped past factory inspectors have had their rear suspension arms reinforced.
In November 1964, Chrysler Corporation sent only to its dealers a bulletin urging them to recall for inspection certain 1965 Plymouth Furys, Chryslers, and full-sized Dodges (denoted by serial numbers) to determine whether the bracket holding the steering gear needed rewelding. As in the Ford case, some 30,000 cars were involved. To Chrysler's credit, it admitted that safety was a consideration in sending out its bulletin. After all, a vehicle's handling could become somewhat difficult should the steering gear break loose. But the company made no attempt to get in touch directly with the car buyer or find out how many unmodified cars were not brought back to dealers.
Consumers Union's automotive consultants considered the Ford case more serious than the Chrysler one. Yet Ford stuck to its story that the letters were sent for the purpose of preserving "a quiet ride."
The fact that automobiles are produced with faulty features or components is commonplace knowledge to those working in the industry. Although he tried later to qualify his statement in an interview with the Wall Street Journal, L. Ralph Mason, manufacturing manager of the Chevrolet division, stated unequivocally in a written message to Chevrolet plant supervisors, "I am deeply concerned about the quality we are building in our cars today." He had good reason to be. The industry's 1965 models fell to new depths of shoddy workmanship. Consumer Reports summarized for its readers the findings of its automobile testing specialists: "The condition of the 1965 cars Consumers Union has bought for test is about the worst, so far as sloppiness in production goes, in the whole ten-year stretch of deterioration that began in 1955. the first year in which U.S. new car sales first approached eight million. Complaint in the trade about the condition of the cars as delivered began to get bitter then and it has continued to be bitter ever since."
Tests of the 1963 models purchased at random by Consumers Union had resulted in thirty-two of thirty-two cars displaying troubles in the first 5000 miles of driving. The defects included rain leaks, a window running out of its channel, door handles that fell off, a broken distributor cap, a speedometer needle that fell back to zero and remained there, a broken seat adjuster, an ignition lock that wouldn't lock, a door that wouldn't latch, engines that leaked oil, directional signals that wouldn't cancel, a grossly inaccurate gas gauge, front wheels out of alignment, and headlights, as the late Mildred Brady of Consumers Union put it, "that aimed at the ground or at the eyes of approaching motorists Or at birds in trees."
Consumers Union's testing facilities in Connecticut are thorough as far as they go, but they are limited by the budgetary considerations of an organization whose only income is subscription payments for its magazine. Each car is tested for a few thousand miles at most. The more latent defects, such as early metal fatigue of suspension arms or rusting-through of hydraulic lines, that would appear on cars driven by ordinary motorists, are not likely to show up and be recorded for the public's safety information.
Some of the most detailed documentation publicly available about defective vehicle construction comes out of litigation against the manufacturer by injured parties. Highly persuasive evidence leading to settlements or verdicts against car makers has involved new cars with headlight failures, leakage of gasoline fumes causing an explosion, a dangerously positioned petcock leading to brake failure on a bus, stuck accelerators, hood latch defects allowing the hood to rear up and slam back through the windshield, defectively designed brakes and steering wheels, door latch and door binge failure. Other cases have come to final judicial decision or have been settled in favor of the plaintiff before the end of trial.
The issue in these cases revolved around either negligent design or negligent construction by the manufacturer. Consequently, these individual cases centering on a particular defect of a particular model cannot be simply dismissed as non-recurring single instances. A "design defect" by definition occurs on all vehicles of that make or model; a "construction defect," arising out of a mass production assembly line, points to a substantial number of vehicles similarly afflicted -- as illustrated above by Ford's rear suspension arm and Chrysler's steering wheel bracket.
A count of court decisions certainly does not constitute a representative sample either of the kind or frequency of vehicle defects. The formidable course that ends with a jury verdict is only, taken in cases that are lucky enough to have extant physical evidence, an intransigent defendant, imaginative counsel and, In most instances, little or no insurance coverage. But the fact that so many of the design defects that are revealed must come to light in court is a severe commentary on how superficially our society evaluates the vehicles role in accidents and injuries. It contrasts sharply with rail, air and marine design hazards which are meticulously investigated and publicly documented by government authorities.
The Senate hearings on automobile safety held in July 1965 elicited testimony from the manufacturers that indicated frequent written notification of dealers concerning defective conditions of new cars, together with corrective instruction and repair kits. (In the past it has been customary for the manufacturer to give the dealer oral notice, especially when the defect was serious and latent.)
Only in a few instances have the manufacturers aimed these "campaigns" directly toward the new car owners. There is no evidence that the manufacturers keep records concerning the number of car owners whose cars are not corrected. A substantial number of motorists are never reached by the dealers, who do not relish advertising any defects of their cars In the local community and who often are instructed by the companies only to make the correction if the customer brings his car in on another matter.
With every new model year, it must be presumed, on the basis of the evidence dealing with breakdowns in product quality, thousands of drivers are driving defective new cars that are likely to be involved in accidents. Hundreds of dealers know this, but are either obeying company orders or are protecting their own interests by remaining silent.
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The 1953 Roadmaster case, the Ford suspension arm, and the Chrysler steering wheel bracket are evidence of breakdown in production quality control Even more insidious are hazards that are the products of design. Born of deliberate knowledge, these hazards are far less likely to be admitted by car makers when they are confronted with substantial evidence of their danger. And, of course, motorists are not warned of these hazards in owner's manuals.
The connection between design defects and driver misjudgment or uncontrollable vehicle behavior is so subtle that neither the accident investigator nor the operator is aware of this connection in collisions. Automatic transmission defects illustrate this point with spectacularly tragic consequences. With more and more vehicles employing automatic transmissions, the occurrence of the "engine-powered runaway accident" is rising alarmingly. These accidents display a similar pattern. A vehicle starting from a standstill or at a very low speed careens or lurches completely out of control with startling unexpectancy. For example:
• A young lady enters her garage and gets into her car to go to work. An instant later the car plummets in the wrong direction straight through the back end of the garage.
• A middle-aged woman is maneuvering her car out of a parked position on a busy main street; suddenly the car shoots forward across the street over the sidewalk and crashes fifty feet through a store window, narrowly missing a number of pedestrians and store clerks.
• An automobile is coming out of a parking garage; abruptly it lurches forward and then careens wildly, killing or injuring pedestrians and patrons of a restaurant.
• A woman shopper is trying to back up her car from a street parking area. The automobile's front wheels are against the curb. On pressing tile accelerator to ease out backwards, the vehicle does not respond; the driver presses down further on the gas. The car jumps the curb, crosses an alley to a nearby house and kills a couple sunning themselves in their own back yard.
• A couple drives into a lumber yard. The husband gets out of the car and notices that his wife has stopped three feet short of a marked area. He asks her to pull up the required distance. She shifts to what she thinks is the forward gear. (The car door is open, and he is guiding her.) The car backs up instead; the open door knocks him down and the car runs over him and kills him.
These are actual cases illustrating the common transmission-induced accidents which trap the driver. They occur because of negligent design of the automatic transmission shift patterns. The driver is charged with reckless driving or negligent manslaughter. Rarely does the police officer recognize that the accident he is investigating proceeded from a built-in design hazard that materialized.
In many instances these "drivers errors" are the result of confusion over the bewildering variety of automatic shifting devices offered in different makes and models of automobiles.