In this diversity action, plaintiffs appeal from a judgment entered upon a special verdict for the defendant in the United States District Court for the Western District of New York, Burke, J., dismissing their causes of action in negligence, breach of warranty, and strict products liability.
The jury heard evidence that on November 15, 1976, Charles Cann, accompanied by his elderly wife, Emeilia, drove a 1976 Mercury Marquis automobile, a Ford product, to a service station in Penn Yan, New York. Upon arriving, Mr. Cann shifted into what he thought was “park,” left his engine running, set his parking brake, and got out of the car. When he slammed the door the car shifted into reverse and began to move. Mrs. Cann, who did not know how to drive, fell trying to get out of the car, and was struck and seriously'injured by it.
Plaintiffs argued that Ford was liable for the injuries they sustained, on the grounds of negligence, breach of warranty, and strict products liability. They introduced evidence that the transmission could appear to be in “park” when in reality it was not, and that when the transmission was “hung up” in this fashion it could slip intо reverse. 1 Plaintiffs’ expert witness suggested various feasible design changes to reduce or eliminate this problem. Plaintiffs also introduced evidence that Ford failed to warn consumers of the dangers to which the allegedly defective design exposed them and failed to advise them of the measures which drivers cоuld take to prevent an accident. Their expert witness testified that “a positive and clear warning” should have been prominently posted on the visor of each new car or at least included in the Owner’s Manual provided by the manufacturer. Plaintiffs further argued that although Ford had been aware of the prоblem since at least 1971, it had not taken adequate remedial measures. Plaintiffs, however, were not allowed to present evidence of remedial measures taken by Ford subsequent to the accident.
*57 Ford offered expert testimony that its gearshift conformed to the industry’s state of the art and that there werе no significant differences between Ford’s gearshifts and those in other contemporary cars. Ford blamed the accident on Mr. Cann’s haste, arguing that he failed to position the gearshift properly. Furthermore, Ford stressed that the accident would not have happened had the Canns taken advantage оf built-in safety features in the Mercury, like the warning buzzer that sounds when the driver’s door is opened while the key is left in the ignition. Finally, Ford argued that Mrs. Cann would not have fallen out of the car had she fastened her seat belt.
The plaintiffs abandoned their breach of warranty claims at trial, and therefore the case was submitted tо the jury only under the theories of negligence and strict products liability. After some prodding by the court, counsel filed requests to charge; the court ruled on the requests and these rulings are not challenged on this appeal. The court sua sponte submitted to the jury two written questions on liability and two blanks to record the damages suffered individually by Emeilia and Charles Cann. The jury was instructed to answer the questions “yes” or “no,” but to determine damages only if they answered “yes” to at least one of the two questions respecting liability. These questions read:
First Cause of Action: Have the plaintiffs proved by a fair preponderance of the evidence that the accidеnt of November 15,1976 was caused by the negligence of the defendant Ford Motor Co. in careless manufacture, design, fabrication, maintenance, repair, upkeep and failure to recall the 1976 Mercury automobile?
Third Cause of Action: Have the plaintiffs proved by a fair preponderance of the evidence that the accident of November 15, 1976 was caused by the fact that the 1976 Mercury, its parts and apparatus, were not fit for the purpose for which they were intended; that the said automobile was unreasonably dangerous for normal and ordinary use; [and] 2 that the defendant Ford Motor Co. failed to recаll said vehicles and therefore that the defendant Ford Motor Co. is liable in tort to the plaintiffs[?]
The record does not reveal a request for a special verdict nor does it indicate the source of the questions. They were evidently not disclosed to counsel before the court read them to the jury.
Following the reading of the charge and the submission of the special verdict questions to the jury, the court asked counsel if they had any exceptions or additional requests. Counsel for appellants asked that the exceptions be made outside the presence of the jury in accordance with Rule 51, Fed.R.Civ.P. Judge Burke insisted that any exceptions be taken then and there. Plaintiffs’ counsel made one exception not raised in this appeal. He declined to make further exception until after the jury retired when he promptly excepted “to the court’s charge and also to the issues submitted to the jury.” He prоceeded to detail objections to the inclusion in the first question of the conjunction “and” after the alternative bases for proving negligence were listed, as requiring the plaintiff to prove all of the recited theories in order to recover. He further objected to the inclusion in the second questiоn of the phrase “fit for the purpose for which they were intended.” And, finally, he objected that the conjunction “and” in the second question required the plaintiffs to prove “every one of those alternative theories instead of allowing the plaintiffs to prevail upon the proof of negligent design which is our main contention in this case.”
The jury answered both questions in the negative and the court entered judgment dismissing the complaint. On this appeal the Canns claim that the court erred in (1) its refusal to permit objections to the charge out of the hearing of the jury, (2) its phrasing of the special verdict questions, *58 and (3) its exclusion of еvidence of subsequent remedial measures as to the product liability claim.
DISCUSSION
A. Court’s Failure to Permit Objections Out of Hearing of Jury
Rule 49(a) Fed.R.Civ.P. (Special Verdicts and Interrogatories) and Rule 51 (Instructions to Jury: Objections) require that objections under these provisions be made before the jury retires. Rule 51 provides that “[n]o party may assign as error the giving or failure to givе an instruction unless he objects thereto before the jury retires.” Rule 49(a) provides that “[i]f . . . the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury.” Rule 51 also requires that “Opportunity ... be given tо make the objection out of the hearing of the jury.” Rule 49(a) contains no such language. It is well settled in this Circuit that, when the trial court errs by refusing to permit a party’s objections to a charge to be made out of the hearing of the jury, the party’s failure to object before the jury retires is excused and his objections may be raised on appeal.
Bentley v. Stromberg-Carlson Corp.,
Even though Rule 49(a) does not contain language similar to that of Rule 51 requiring that the trial court hear objections out of the hearing of the jury, logic requires similar treatment where, as here, the special verdict questions were included in the charge. In cases such as this, there is nо reason to give parties less protection when they object to the phrasing of a special verdict question than when they object to the phrasing of general instructions. Therefore, the failure to permit the objections to the special questions out of the hearing of the jury was an abuse of the trial court’s discretion and we will consider these objections preserved for appeal.
The formulation of special verdict questions rests in the discretion of the trial judge,
Tights, Inc. v. Acme-McCrary Corp.,
Appellants complain that the special questions were phrased in the conjunctive rather than the disjunctive — that the questions should have read “or” rather than “and.” Appellants claim that they should have prevailed on the negligence count upon their proof that the accident was caused by the negligent design of the Mercury. They assert that the conjunctive form of the question prevented the jury from returning a verdict in their favor on that basis alonе. Thus, they contend that before the jury could answer the negligence question in the affirmative, they also had to find that Ford was negligent in its manufacture, fabrication, maintenance, repair, upkeep, and failure to recall the Mercury. We conclude that the submitted question created an unfair obstacle tо the jury’s returning an answer favorable to the plaintiffs. The second question addressed to the strict liability count is equally flawed because, in the form read to the jury, it was also phrased in the conjunctive rather than the disjunctive.
Appellees respond that the jury was not misled by the phrasing of the questions
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because they knew that plaintiffs’ primary contention at trial had been that the Mercury was negligently or defectively designed. However, just as we must assume that the jury follows the law as it is explained to them by the judge,
Fairmount Glass Works v. Cub Fork Coal Co.,
In addition to the reversible error discussed above, the special verdict contained other deficiencies which should be remedied on retrial. The first question requested the jury to determine whether Ford had acted negligently in a number of matters, some of which were never raised at trial. For example, our review of the record does not reveal any evidence of negligent repair or upkeep of the Mercury by Ford and, therefore, these matters should not have been included in the question. In the second question, the court should not have included the phrase “fit for the purpose for which they were intended” in a question respecting strict products liability. That phrase relates to the implied warranty action, see Note, Analyzing “Defect” in New York Products Liability Law: The Proof Is in the Product, 29 Syracuse L.Rev. 1217, 1231 — 32 (1978), contained in the complaint but abandoned at trial. Finally, the special verdict did not contain a separate inquiry into the existence and percentage of any comparative negligence on the part of Emeilia or Charles Cann. Such an inquiry would help focus the jury’s deliberations on a mаjor issue in this case — the alleged contributory negligence of the plaintiffs.
B. Evidentiary Rulings
Appellants assign as error the court’s refusal to permit them to introduce proof that in 1980 Ford modified the design of its transmission and that in 1978 Ford changed its Owner’s Manual to specifically instruct drivers to turn off the ignition before leaving the car. We find no mеrit in’ this claim.
The admissibility of the post-accident warning is controlled by
Lindsay v. Ortho Pharmaceutical Corp.,
The failure of Rule 407 to refer explicitly to actions in strict liability does not prevent its application to such actions. When Congress enacted the Federal Rules of Evidence, it left many gaps and omissions in the rules in the expectation that common-law principles would bе applied to fill them. See
Werner v. Upjohn Co., supra,
Thе rule excluding evidence of subsequent remedial repairs represents a common sense recognition that people are loath to take actions which increase the risk of losing a lawsuit. Rule 407 is prompted by the fear that people will be less likely to take subsequent remedial measures if evidence of their repairs or improvements may be used against them in lawsuits arising out of prior accidents.
Werner v. Upjohn Co., supra,
The judgment is vacated and the case remanded for a new trial. The parties shall bear their own costs.
Notes
. Plaintiffs also argued that the design of the parking brake was defective. The parking brake was designed to release itself automatically when the car was put into reversе. Plaintiffs conceded that this design feature was not dangerous in some cars, but they argued that it was dangerous to incorporate this feature into a car which might unexpectedly slip into reverse.
. When the trial judge read the questions to the jury, he inserted the conjunction “and” at this point.
. Fed.R.Evid. 407 provides:
When, after an event, measurеs are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
. We leave to the trial judge the determination of whether the evidence may be admitted at retrial under one of the exceptions to Rule 407.