Dеfendants appeal judgment rendered for plaintiff in the amount of $498,000. A jury found defendants liable for plaintiffs injuries arising out of the manufacture and sale of a defective product. The product was a 1970 Porsche 914 automobile. The case was predicated on the theory of strict liability.
Plaintiff August J. Holmquist was riding as a passenger in the Porsche automobile when it left the road and overturned. The vehicle was being driven by the owner, Judith A. Kilmer. She purchased the car four days earlier from defendant, Gruber, Porsche/Audi, Inc., the authorized dealer for Volkswagen of America, Inc., in Cedar Rapids. Defendant, Volkswagen of America, Inc., manufactured the car. At the time of the accident, the car had been driven 229 miles.
The accident occurred on April 4,1970, at about 1:50 a. m. The night of the accident Kilmer was a guest at a party hosted by plaintiff at his home in Cedar Rapids. Among the people present were radio announcers from the radio station in Cedar Rapids where plaintiff was employed and their friends. Kilmer invited plaintiff to go for a ride in her new automobile and the two left plaintiff’s home between 12:30 and 1:00 a. m. The trip was intended to be short. Kilmer wanted to get hоme since she had to go to work the next morning. Weather conditions were excellent. The pavement was dry and there was no precipitation.
Kilmer and plaintiff drove several miles through Ellis Park on Ellis Road. She turned the automobile around for the ride back to plaintiff’s home. The return trip was made on the same roadway which was designated a County Highway and was surfaced with asphalt.
The road curved slightly to the left on the first leg of an “S” curve, then proceeded a short distance on a straight segment, slightly downgrade, after which it curved sharply to the right. Kilmer drove the car succеssfully through the first leg of the “S” curve but was unable to maintain the car on the road when it turned to the right. The car went off the left-hand side of the road and overturned. Kilmer and plaintiff were both injured. Plaintiff sustained a broken leg and other injuries. He suffered a loss of blood- to the extent he had no blood pressure or pulse on admission to the hospital.
At the time of the accident, plaintiff was a paraplegic, the result of being shot in the back seven years earlier. He was paralyzed below the tenth thoracic vertebra at which level the spinal cord was severed by the gunshot. He was able to get about by use of his wheelchair and a specially equipped car. The injuries received in the automobile accident consisted of multiple fractures of the pelvis and lower right leg. Subsequently it was discovered he had a severed urethra; however, there was dispute whether it occurred in the accident or before. Due to the fractures and complications ensuing from the paralysis, plaintiff’s right leg was amputated between the knee and hip. Plaintiff also developed decubitus ulcers which required skin grafting.
Defendants appeal the judgment on the ground their motion for judgment notwithstanding the verdict should have been granted or alternatively, a new trial ordered. The following issues are raised on appeal.
*520 1. Judgment should have been directed in their favor because plaintiff failed to establish a defect in the automobile, and that the alleged defect was a proximate cause of the accident. Further, the recall campaign of defendants was not evidence of a defect or of a proximate cause of the accident.
2. Error was committed by the trial court in refusing to allow testimony by defendants’ expert witness, Severy.
3. The verdict of $498,000 was excessive and not supported by the evidence.
4. The trial court abused its discretion in failing to grant defendants a new trial.
I. We consider together the matters relating to directing a verdict or judgment n. o. v. for defendants. The supreme court discussed the theory of strict liability in 1970 in
Hawkeye Security Insurance Co. v. Ford Motor Co.,
The elements essential to establish a cause of action under this standard are: 1) sale of a product by the defendant, 2) the product was in a defective condition, 3) the defective condition wаs unreasonably dangerous to the user or consumer, 4) the seller was engaged in the business of selling such a product or products, 5) said product was expected to and did reach the user or consumer without substantial change in condition; i. e., the defect existed at the time of sale, 6) said defect was the proximate cause of personal injuries or property damage suffered by the user or consumer, and 7) damages suffered by the user or consumer.
See Kleve v. General Motors Corp.,
The rule of strict liability in tort applies to a retailer as well as to the manufacturer of a defective produсt.
Vandermark v. Ford Motor Co.,
Defendants claim the second and sixth elements for proving a strict liability case have not been met by plaintiff. They assert there is insufficient evidence to create a jury question that a defect was present in the Porsche automobile as claimed by plaintiff, and that the defect was the proximate cause of the accident. The defect relied on by plaintiff was in the steering apparatus.
In considering these questions, we view the evidence in the light most favorable to plaintiff. Rule 14(f)(2), Rules of Appellate Procedure. Viewed thusly, a jury could find the following facts: the automobile purchased by Judith Kilmer from defendant Gruber was four days old at the time of the accident and had been driven 229 miles. Kilmer noticed prior to the accident that the steering wheel turned hard and made an unusual clicking sound when the wheel was turned; she had complained to the defendant Gruber about these matters. Another witness, Clair Key-ton, drove the car before the accident, observed it steered hard, heard a funny grinding sound and felt a vibration when she turned the steering wheel.
Immediately prior to the аccident, when Kilmer, was with plaintiff, she had trouble making a “U” turn due to the difficulty with the steering wheel. After making the “U” turn she headed back to Cedar Rapids, traversing a curve to the left. In trying to turn the steering wheel back to negotiate the right turn of an “S” curve, she found it would not turn. This caused her car to leave the roadway and turn over. The speed of the automobile at the time of the accident was between 40 and 45 miles per hour and within the legal limit.
*521 After the accident, an investigator, Lester J. Burianek, tested the steering wheel and found it would stick or bind when turned to the right after being turned as far left as possible. A few days later a mechanic engaged by defendants tightened the retaining bolts on the steering mechanism of the car. Several turns with a torque wrench were made on the bolts. This was done before the car was examined further or road tested. After the bolts were tightened Burianek again tested the steering wheel and found the sticking or binding was gone. A recall letter sent by defendant Gruber to Kilmer which arrived after the accident advised that the retaining bolts for the steering gear should be checked for tightness. Other evidence indicated that under continued driving the retaining bolts may loosen, resulting in a serious impairment of steering control.
Defendants point out that no expert witness on behalf of plaintiff testified as to the claimed defect in the steering mechanism or that the condition of the retaining bolts, even if defective, could have caused the accident. Defendants further assert that the recall campaign is not evidence of any probative value nor does the rest of plaintiff’s evidence amount to a quantum of proof sufficient to create a jury issue.
In
Kleve v. General Motors Corp.,
In
MacDougall v. Ford Motor Co.,
The expert found three specific mechanical defects. Metal flakes were present in the gear box, the bearing on the steering shaft was tight and the high point on the sector shaft was adjusted too tightly. The expert gavе no opinion as to whether the metal flakes or tight bearings prompted the accident, but suggested that the adjustment to the sector shaft would very likely have caused the accident. Appellant argued a failure to meet the burden of proof of causation occurred because the expert did not state unequivocally that the specific defects in the steering assembly were the cause of the accident. In rejecting appellant’s contention, the court analyzed the requirements of strict liability under Restatement (second) of Torts § 402A (1965).
The Pennsylvania court found that actions under § 402A are governed by the evidentiary standards of warranty law rather than negligence. Under those standards, the occurrence of a mechanical malfunction evidences a defective condition without proof of the specific defect in design or assembly causing the malfunction. The court noted plaintiffs in warranty actions have established a malfunction and *522 sustained liability in the absence of proof of a specific defect. The court held the occurrence of a malfunction of machinery in the absence of аbnormal use and reasonable secondary causes is evidence of a defective condition within the meaning of § 402A, as it is evidence of lack of fitness for warranty liability.
Plaintiff MacDougalPs testimony of the erratic steering action, both before and when the accident occurred, established a mechanical malfunction in the absence of abnormal use which prevented her from maintaining control of the car. The court found the most reasonable inference to be drawn from this proof is that a defective condition in the car proximately cаused the accident, hence the issue of causation was properly left to the jury. The court added the expert’s testimony that improper adjustment to the shaft would produce the precise steering aberrations experienced by appellees lent definite additional support to the inference. It is clear, however, the expert’s testimony was not required to establish the quantum of proof necessary to create a jury issue.
Henningsen v. Bloomfield Motors, Inc.,
In
Caldwell v. Fox,
In
Glynn Plymouth, Inc. v. Davis,
*523
A passenger in the car involved in
Hunter v. Center Motors, Inc.,
Sabloff v. Yamaha Motor Co., Ltd.,
In affirming, the New Jersey Supreme Court,
In the case at bar the jury was also entitled to consider the changes made by defendants in tightening the retention bolts on the Porsche automobile after the accident. This act was apparently unauthorized by plaintiff or Kilmer. It had the effect of denying plaintiff the opportunity to examine the car regarding this specific defect. Apropos to this occurrence is the statement by the Georgia court in
Greer v. Andrew,
Exhibit 40 relating to defendant’s recall campaign came into evidence without objection. It was a sample letter to customers composed by defendant Volkswagen for use by dealers such as defendant Gru-ber. The following paragraph appeared:
The Porsche factory advised us that the retaining bolts for steering gear and the lock rings should be reviewed. Under continued driving, these bolts may loosen, resulting in a serious impairment of steering control.
Defendants contend this evidence has no probative valuе. Certainly it does not prove a specific defect in Kilmer’s car. It does, however, show the result of loosened bolts, i. e., a serious impairment of steering control. As such, it is entitled to full probative value by the jury.
See Walker v. City of Clinton,
In Reid v. Automatic Electric Washer Co.,189 Iowa 964 , 976,179 N.W. 323 , 328, we said: ‘It is the general rule that a materia] fact at issue may be established by hearsay evidence, where the same is admitted without objection.’
Walker, supra at 1111.
The Iowa Court many years ago indicated the approach for determining if a jury issue had been established in a products liability case. In
State Farm Ins. Co. v. Anderson-Weber,
Brakes should not be defective from the beginning. Steering mechanism should not fail, nor сars burn up within 10 days. When such things happen and there is evidence as to the cause, courts should be reluctant to deny the purchaser the right to submit his claim to a jury.
*524
Further, in
Federated Mut. Imp. & H. Ins. Co. v. Dunkelberger,
Generally the question of proximate cause is for the jury; it is'only in exceptional cases that it may be decided as a matter of law.
From a review of all the evidence and the standards established by the cited authorities we hold plaintiff established sufficient facts for the submission to the jury of the question of liability under the strict liability theory.
II. Defendants offered the testimony of Derwyn Severy as an expert witness. Sev-ery, a reseаrch engineer who has specialized in human factors engineering, was prepared to express his opinion of what happened based on his study of the facts surrounding the accident. Plaintiff’s objection on the ground of improper foundation was sustained.
The trial court clearly set forth the reason for its ruling:
We’re not dealing with a situation where we had measurements made. We’re dealing with a situation where most of the physical facts you include in your hypothetical are estimates arrived at years afterward by people who were there but made no effort tо make exact measurements. Nobody seemed to think the accident was worthy of any sort of investigation at the time. They so testified. The policemen were admittedly not investigating. Deputy Fiser stated that he didn’t make any of the measurements or do any of the things he normally does because- it was so obvious to him what happened. I mean, that’s what bothers me about eliciting an expert opinion on these matters as we are dealing with such vague, general, ambiguous — and I think there are some contradictions in some of the facts you include in your hypothetical.
Iowa is сommitted to a liberal rule which allows opinion testimony if it is of a nature to aid the jury and is based on special training, experience, or knowledge with respect to the issue in question.
Hau-mersen
v.
Ford Motor Co.,
In
Bernal v. Bernhardt,
In the case at bar there was no abuse of discretion in sustaining the objection to Severy’s opinion testimony.
III. Defendants next assert the verdict of $498,000 was flagrantly excessive and not supported by the greater weight of the evidence. On appeal the question is not whether this court would have awarded the amount of damages found by jury. It is not for us to invade the province of the jury. The criteria established for appellate review is that a verdict will not be set aside or altered unless it is 1) flagrantly excessive or inadequate, or 2) so out of reason as to shock the conscience or sense of justice, or 3) raises a presumption it is the result of passion, prejudice or other ulterior motive, or 4) is lacking in evidential support.
Schmitt v. Jenkins Truck Lines, Inc.,
It should not be forgotten that determination of amount of damages, particularly in actions of this nature, is primarily and peculiarly within the province of the jury, under proper instructions, and courts should be and are reluctant to *525 interfere with the conclusion of the jury when fairly made.
The injuries sustained by plaintiff Holm-quist were severe. He had multiple fractures of the right leg and pelvis and ultimately underwent an amputation of his right leg. A severed urethra was also discovered. Although it was disputed by defendants that this occurred in the accident, there was, nevertheless, sufficient proof for the jury to properly consider it.
Plaintiff was confined to bed, flat on his back for six weeks, due to the pelvic fracture. He developed various ulcers which required treatment. He had an ulcer at the site of the coccyx bone and developed an ulceration of the stump where his leg was removed. The pelvic fracture also caused a difference in weight pressures which resulted in a decubitus ulcer development on the right buttocks and three ulcers on the left ankle. Plaintiff spent five months in bed trying to heal the decubitus ulcer on his right buttock. Ultimately, skin grafting was necessary. The prognosis is that plaintiff will continue to have a series of breakdowns of skin with more decubitus ulcers resulting.
Plaintiff is unable to walk with crutches or braces due to the paralysis and amputation between the hip and knee. With the amputation plaintiff also lost the hope he had entertained that at some time medical science would find a cure for his paralysis so he could walk again. He has had considerable pain and suffering and mental anguish due to these injuries. There was evidence of a more difficult adjustment for plaintiff after the amputation than after the paralysis.
Medical and hospital expenses of plaintiff at time of trial amounted to $11,298.07. He also sustained a loss of earnings in the amount of $32,890.00. A loss of future earnings of $227,240.00 was in evidence. Plaintiff at the time of trial, was 27 years old and had a life expectancy of 43.99 years.
Defendants contend there was no evidence to support the assertion plaintiff has sustained a future loss of earnings. In tort cases for personal injuries, impairment of future earning capacity is a distinct item of damage.
Carradus v. Lange,
In
DeWall v. Prentice,
There is no requirement such loss need be measured in a vacuum: ordinarily considered are plaintiff’s poor health, education, and opportunity for education, age, intelligence, industriousness, manner of living, sobriety or temperance, frugality or lavishness or other personal characteristics which affect ability to secure business or earn money.
Ehlinger v. State,
Other damage elements such as injuries to thе person, pain and suffering and total disability are incapable of pecuniary measurement by witnesses and must be left to the sound judgment of the fact finder based on the evidence.
Schnebly v.
*526
Baker,
Defendants cite specific cases in an attempt to compare size of verdicts for рersonal injuries. The supreme court has recently noted comparison of verdicts is of little value in determining whether an award in a particular case is excessive. Each case must be evaluated according to the evidence peculiar to it alone.
Fetters v. City of Des Moines,
From a review of the record, we hold the jury verdict on damages is within the scope of the evidence adduced and there is, therefore, no reason to disturb the jury’s award.
IV. As a final assignment of error, defendants assert it was an abuse of trial court discretion to deny a new trial. This assignment claims the jury disregarded the weight and sufficiency of the evidence and a miscarriage of justice ensued.
Defendants lay heavy stress on the testimony of their experts that even if the retention bolts were loose, the steering would not have been adversely affeсted. Of course plaintiff’s case is not circumscribed, as defendants would have it, to a defect in the retention bolts. The defect relied on and on which the verdict rests is in the steering mechanism, a broader concept to which plaintiff’s evidence applies.
Defendants note the appellate court is more reluctant to interfere with the granting of a new trial than with its denial. R.App.P. 14(f)(3). But the granting of a new trial may also be an abuse of discretion.
Lappe v. Blocker,
Of particular relevance on the substitution of the judge’s view for the jury’s is
Lantz
v.
Cook,
In jury trials controverted issues of fact are for the jury to dеcide. That is what juries are for. To hold that a judge should set aside a verdict just because he would have reached a different conclusion would substitute judges for juries. It would relegate juries to unimportant window dressing. That we cannot do.
[[Image here]]
The record discloses no prejudicial error in the trial. The verdict was within the evidence. The jury has spoken. The parties had a fair trial. The court may not arbitrarily substitute its opinion for the conclusion of the jury.
This language applies equally well to the case at bar. The record shows the motion for new trial was thoroughly briefed by the parties and well considered by the trial court. We hold its denial was not an abuse of discretion.
Affirmed.