Casetta v. United States Rubber Co.

—Plaintiff, a tire repairman, who was injured as a result of an explosion which occurred while he was mounting a new automobile tire on a rim, has appealed from a judgment

The court instructed the jury, “In this action plaintiff has the burden of proving that the tire involved in the accident contained a defect which existed with or without the negligence of the defendant United States Rubber Company, and further, that the defect thus identified was the proximate cause of injury and damage to plaintiff”; and gave further instructions as offered by the parties on the theory of the strict liability of a manufacturer and distributor of a defective product. No instructions were given with respect to defendants’ negligence or breach of warranty. Negligence was alluded to in connection with the claim that plaintiff’s employer was negligent as submitted in special interrogatories (see fn. 1, supra). Despite the fact that defendants’ negligence and plaintiff’s contributory negligence were not in issue, the court did give an instruction on the two elements of contributory negligence patterned after the first paragraph-of BAJI Instruction No. 103-C, and an instruction on the varying amount of caution required in the words of BAJI Instruction No. 102-A prior to its revision. No other instructions defining negligence or otherwise prescribing the application of principles of negligence were given.

On this appeal plaintiff contends that the court erred in granting the defendants’ motion for judgment notwithstanding the verdict because there is evidence of sufficient substantiality to support the verdict that there was a physical defect in the product which proximately caused injuries for which the defendants, as manufacturer and distributor, respectively, are strictly liable. If plaintiff establishes this contention the reversal of the judgment entered upon the granting of defendants’ motion would reinstate the judgment on the verdict. (Ferran v. Mulcrevy (1935) 9 Cal.App.2d 129 , 131-132 [ 48 P.2d 948 ]; and see Devens v. Goldberg (1948) 33 Cal.2d 173 , 181 [ 199 P.2d 943 ]; Tomlinson v. Kiramidjian (1933) 133 Cal.App. 418 , 422-423 [ 24 P.2d 559 ]; Lauritsen v. Goldsmith (1929) 99 Cal.App. 671 , 676 [ 279 P. 168 ]; and discussion Espinoza v. Rossini (1966) 247 Cal.App.2d 40 , 55-

An examination of the record in the light of the applicable principles of procedural and substantive law indicates that the court properly concluded that the evidence produced was insufficient to support a finding of a defect in the tire which would support a judgment predicated upon the strict liability of the distributor or the manufacturer, However, since there was substantial evidence to show that the manufacturer and the distributor failed to give prospective users warning with respect to the special hazards arising out of the mounting of the tire on “safety” rims, the trial court erred in withholding this issue from the jury and the case must be reversed and remanded for a new trial.

“The judgment can be supported only if, giving plaintiff’s evidence full prima facie value and indulging in every reasonable inference that can be drawn therefrom and with all conflicts resolved in plaintiff’s favor, the result is a determination that there is no substantial evidence to support a judgment for the plaintiff. Neither the appellate court nor the lower court may weigh the evidence or consider the credibility of the witnesses. [Citation.] The plaintiff here may rely on that portion of testimony given under Code of Civil Procedure, section 2055, which is favorable to him and disregard the unfavorable portions. [Citation.] However, the evidence produced by plaintiff must support a logical inference in his favor, sufficient to raise more than a mere conjecture or surmise that a fact is as alleged in order to warrant submission of the question to a jury [citation], and a court should not put itself in the incongruous position of destroying logic to hold a ease in court. [Citation.] It is in the light of these principles that the evidence must be reviewed.” (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724 , 731 [ 7 Cal.Rptr. 879 ]. See also [where issue of fact found] Reuther v. Viall (1965) 62 Cal.2d 470 , 474-475 [ 42

“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 , 62 [ 27 Cal.Rptr. 697 , 377 P.2d 897 , 13 A.L.R.3d 1049 ], See also Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256 , 260-261; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 649-650; Preston v. Up-Right, Inc. (1966) 243 Cal.App.2d 636 , 638 [ 52 Cal.Rptr. 679 ]; Erickson v. Sears, Roebuck & Co., supra, 240 Cal.App.2d 793 , 798; Canifax v. Hercules Powder Co., supra, 237 Cal. App.2d 44 , 51; Crane v. Sears Roebuck & Co., supra, 218 Cal.App.2d 855 , 859-860; and Reynolds v. Natural Gas Equipment, Inc., supra, 184 Cal.App.2d 724 , 736.) Also “a retailer engaged in the business of distributing goods to the public ... is strictly liable in tort for personal injuries caused by defects in [articles] sold by it. [Citations.] ” (Vandermark v.

The burden is upon the plaintiff to show that the tire was defective and that the defect caused the explosion. (Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 650; Preston v. Up-Right, Inc., supra, 243 Cal.App.2d 636 , 639; Erickson v. Sears, Roebuck & Co., supra, 240 Cal.App.2d 793 , 798.) In Greenman, supra, the court stated, ‘ ‘ To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.” (59 Cal.2d at p. 64.) In Vandermark, supra, it ruled, “The trial court struck the testimony of the possible causes of the failure of the piston to retract, on the ground that there was no direct evidence that any one or more of the causes existed, and it rejected plaintiffs’ offer to prove that all of the possible causes were attributable to defendants. These rulings were erroneous, for plaintiffs were entitled to establish the existence of a defect and defendants ’ responsibility therefor by circumstantial evidence, particularly when, as in this ease, the damage to the car in the collision precluded determining whether or not the master cylinder assembly had been properly installed and adjusted before the accident.” (61 Cal.2d at p. 260. See also Gherna v. Ford Motor Co., supra, at p. 650; and Erickson v. Sears, Roebuck & Co., supra, at pp. 798-799.)

Plaintiff was hired by the U-Save discount gasoline house in San Mateo in 1962. Previously he had served three years in the Army where he had worked as a tow truck mechanic in a motor pool and had changed “quite a few” tires. He was assigned to the service room at U-Save where his duties eon

The procedure for the sale of a tire was that a customer would pick out a tire at the U-Save store, and then bring the order form out to the service room for the tire change. Plaintiff testified that he would then remove the old tire from the car and place the new tire on the rim. This was done by putting the old tire on a machine called the “Iron Man” and putting a locking nut on to hold the rim in place while the old tire was removed. The tire was removed by removing the valve stem from the tube and allowing the pressure to escape. The old tire could then be removed from the rim with tools which were used to break the joints between the beads of the tire and the wheel rim.

The new tire was then placed on the rim, pressing it down to seal the bottom bead, feeling the beads and then filling it Avith air to seal the top bead. The tube tire required the placing of the tube in the tire and pulling the valve stem up through the rim for inflation. After inflating the tire the top bead would seat. Plaintiff testified in some cases it was necessary to wrestle or center the tire to make it seat. He indicated the air hose could be clamped on to the valve stem to give him free hands to center the tire while it was being inflated. Once the tire was seated, he removed the air hose and clamp. He had been instructed to use a rubber lubricant when he found it difficult to mount a tire, but in his experience lubrication was not necessary on the type of tire involved in the accident because such tires were flimsy and would easily seat.

A fellow employee who had trained plaintiff on the job confirmed that it was not normal procedure to use a lubricant while mounting a tire, and that in mounting over 5,000 tires he had only had occasion to use a lubricant once or twice on truck tires and once on a heavy gauge tire for a passenger car. The manager of the service department testified that lubricants were used if the serviceman had the time, or when necessary, because a tire “would not take properly, after a couple of tries”; and that the practice was to dispense with lubrication in the interest of serving the customer quickly.

The tires sold at U-Save were delivered directly from United States Rubber Company by the distributor Gasoline Marketers under the brand name Fisk. The Fisk tires ranged in grade and price from $40 to under $10, for a Fisk Windsor. The Windsor Avas the most inexpensive tire produced by the manufacturer in the Fisk line. It was used by the retailer

On February 8, 1963, at about 5 p.m., a customer came in to buy two tires. Plaintiff put the customer’s ear on the rack and removed the old tires and rims, put them on the machine and took off the old tires. The customer purchased two Fisk Windsor tires and plaintiff began the mounting process. These rims were Chrysler safety or hump-type rims. In the mid-1950’s various automobile manufacturers introduced this rim to safeguard motorists by providing that a tire would not fly off the rim during the course of a service failure or blowout. Although thus protecting the motorist, the new style “safety rim” markedly increased the danger of explosion for those engaged in mounting tires. This danger arose from the fact that air pressure was utilized to “seat” the tire on all tire rims. To “seat” a tire on a hump-type rim the beads of the tire had to be forced over the slightly larger diametered hump of the rim by inflating the tire. In essence, the process required a tire with a bead diameter of 14.890 inches to pass over a hump with a 14.968 inch diameter in order to reach the seating position. The process involved the compression of the bead material and not the ‘1 stretching ’ ’ of the bead wire.

Plaintiff testified he was not instructed and had no idea that certain rims caused problems and' that he never noticed any difference between rims except for the difference, not material in this case, between a 14-inch rim and a 15-inch rim. The fact that the rim .involved in the accident was from a Plymouth made no difference to him. He also testified that he had not noticed that Chrysler safety rims wére more difficult to work with than other rims, or that you Had to. lubricate tires mounted on Chrysler products.

The assistant manager of the service station testified that he examined the tire shortly after the ambulance took plaintiff; that it was part on and part off the rim; that he found two breaks in the tire on the bead, which he considered 1 ‘ a piece of wire that runs around in” the tire; that the bead was all ‘‘curlyeue” in two places; that there were one or two, 2-inch rips in the bead; and that the wire was up over the rubber and one could put a finger between where the wire had popped out and where the wire was bent. He also observed a 5- or 6-inch rip or slash in the outer rubber of the wall of the tire just above the bead. According to him this slit or cut ran into the bead break. It was simply in the outer rubber and did not go into the cord or casing.

A police officer who was investigating the accident first observed the tire after it had been placed up edgeways against the leg of a workbench. He testified that he observed that one bead of the tire was outside the rim; that there was a large sized rip in the tire of from 10 to 12 inches in length which went right through the tire to a corresponding tear in the tube; and that a section of the air hose, containing the nozzle, was still attached to the valve stem of the tube. He looked at the bead, but did not notice anything in particular about it, and as far as he could recall it was not broken or bent. He could not say where the tear in the tire was located in relation to the bead. He acknowledged that he had erroneously omitted to mention the rip in the tire itself in his report.

The tire was removed from the wheel and rim so that a new tire could be mounted for the customer. The tire and tube were taken to the manager’s office. On the following day a coworker examined the tire. He noticed a gash in the side of the

The ultimate disposition of the tire is not clear. According to the manager he put plaintiff’s name on the tire in yellow chalk and it remained in his office for two months or so, because he was asked to retain it by the president of the distributing firm. Then in order to get it out of the way he tagged it with masking tape and a note indicating that it was the accident tire and should be held for the distributor, and gave it to the driver of a truck who had come to return the normal adjustment tires to the distributor. Although he was not sure of the identity of the truck driver, he recalled telling him it was the accident tire, that it should be put away by itself, and that an official of the distributor should be notified.

The assistant manager testified that the tire remained in the office three weeks or a little longer; that a driver for the distributor came down specially to pick up that particular tire; that pursuant to instructions from the manager he removed the tire from the office and delivered it to the driver; and that no one pasted a piece of paper on it to identify it.

The driver, to whom the assistant manager allegedly delivered the tire, testified that he did not ask for the particular tire; that in July of 1963 he received a tire from the manager which the manager identified as the tire which was involved in plaintiff’s accident; that he took this tire to the distributor ’s warehouse, and, within 30 days after he picked it up, he left it at the manufacturer’s warehouse with an adjustment slip, which he prepared and which indicated that this was a manufacturer’s defect consisting of a bent bead. According to this witness the tire which he received and turned in for adjustment did not have a slash or tear, the bead was not broken, nor was any wire showing, but it was bent in two places approximately 60 degrees apart on the inner surface of the circle of the bead. The driver doubted that there was any reference on the tire to plaintiff at the time it was delivered to the manufacturer’s warehouse.

There is no direct evidence of the cause of the explosion. No expert was able to inspect the tire to determine whether or not it had a defect. Plaintiff relies upon the following circumstantial evidence: the plaintiff’s testimony that he put air in the tire for only 10 to 15 seconds; the tests which showed that

The plaintiff is entitled to rely on circumstantial evidence to establish the existence of a defect. (Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256 , 260; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 650; Erickson v. Sears, Roebuck & Co., supra, 240 Cal.App.2d 793 , 799.) The trier of fact may accept circumstantial evidence, con^sting of the physical facts, as proof of an ultimate fact, and reject direct evidence to the contrary. (Seeley v. Combs, supra, 65 Cal.2d 127 ,132-133; Gray v. Southern Pac. Co. (1944) 23 Cal.2d 632 , 641 [ 145 P.2d 561 ]; Truck Ins. Exchange v. Stilley, supra, 213 Cal.App.2d 311 , 323-324; Kerner v. Peacock Dairies, Inc. (1933) 129 Cal.App. 686 , 689 [ 19 P.2d 283 ].) He is also entitled to the full weight of the admission of the distributor’s agent. (Bonebrake v. McCormick (1950) 35 Cal.2d 16 , 18-19 [ 215 P.2d 728 ]; Langensand v. Obert (1933) 129 Cal.App. 214 , 218 [ 18 P.2d 725 ]; Gates v. Pendleton (1925) 71 Cal.App. 752 , 759 [ 236 P. 365 ].)

The lacuna in plaintiff’s proof is the absence of testimony to show that any of the defects, the existence of which is suggested by the testimony, was of a type which could have contributed to the explosion. The retailer’s manager referred to blemishes on the whitewalls, small puffiness in the sidewall, and something that looked like a fine line or cut in the sidewall. He also testified that tires were returned after road use because the inner cords had damaged the tube. There was no evidence to show that this trouble ever manifested itself in the mounting process. Such manifestation, of course, would have precluded later complaint. There is nothing to suggest that any of the other alleged defects had any effect on the capacity of the tire to hold normal air pressures. Plaintiff does not

The distributor’s agent testified that he returned the tire which he received from the retailer for adjustment because of a defect which he denominated “bent bead.” In considering the effect of this evidence on plaintiff’s case, the adverse witness’ further testimony, that his job was to present any tire which looked like it had something wrong with it and which he thought he could get credit for, must be disregarded. So must the obvious discrepancies between his testimony and that of the manager and assistant manager concerning the time and general circumstances under which he picked up the tire. Nevertheless, if it was in fact the tire involved, it was the tire which the manager testified had a defect on the bead, which if it were present before the explosion, would have been noticed by anyone handling the tire. Proof that the tire was the subject of a claim for a “defective” tire after the explosion does not answer the question of whether such a defect existed before. Furthermore, in the absence of evidence as to whether the manufacturer allowed an adjustment, the alleged admission of the distributor cannot bind it.

In Vandermark the court expressly pointed out that it was error to exclude proffered expert testimony that the accident could have been caused by an inherent defect in the brake system, and the substance of this offer of proof was relied on by the court in upholding plaintiff’s theory of strict liability. ( 61 Cal.2d 256 at pp. 260-261.) Similar evidentiary references are found in other cases applying the theory of strict liability. (Greenman v. Yuba Power Products Inc., supra, 59 Cal.2d 57 , 60 [expert testimony on defective design and construction]; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 650 [expert testimony of a short in the wiring system and of a potential fire hazard created by the design]; Reynolds v. Natural Gas Equipment, Inc., supra, 184 Cal.App.2d 724 , 737

The three conditions requisite for the application of the doctrine of res ipsa loquitur are the following: ‘1 The doctrine of res ipsa loquitur has three conditions: ‘ (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts, p. 295.)” (Ybarra v. Spangard (1944) 25 Cal.2d 486 , 489 [ 154 P.2d 687 , 162 A.L.R. 1258 ]. See also Seeley v. Combs, supra, 65 Cal.2d 127 , 133; Leonard v. Watsonville Community Hospital, supra, 47 Cal.2d 509 , 514; Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436 , 442-444 [ 247 P.2d 344 ]; Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453 , 457-458 [ 150 P.2d 436 ]; Honea v. City Dairy, Inc. (1943) 22 Cal.2d 614 , 616-617 [ 140 P.2d 369 ]; Druzanich v. Criley (1942) 19 Cal.2d 439 , 444 [ 122 P.2d 53 ]; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 647; Cordova v. Ford (1966) 246 Cal.App.2d 180 , 184 [ 54 Cal.Rptr. 508 ]; Reynolds v. Natural Gas Equipment, Inc., supra, 184 Cal.App.2d 724 ; Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App. 2d 784 , 793 [ 28 Cal.Rptr. 277 ]; Baker v. B. F. Goodrich Co. (1953) 115 Cal.App.2d 221 , 226 [ 252 P.2d 24 ].)

The existence of the first requirement is established for the reasons enunciated in Baker v. B. F. Goodrich Co., supra, 115 Cal.App.2d 221 , as follows: “As to the first requirement, no extended discussion is necessary for we hardly believe that it can be doubted that the accident here is of a kind which ordinarily does not occur in the absence of someone’s negligence. Automobile tires properly constructed

The existence of the second condition is governed by the following considerations: ‘‘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.” (Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d 453 , 458.) Defendants do not contend that the tire was improperly stored or handled by the retailer prior to the mounting operation, and this condition may be deemed to have been satisfied.

Defendants vehemently assert that the plaintiff failed to produce evidence to satisfy the third requirement, and that the evidence compels the conclusion that he contributed to the accident. In Baker, supra, the court concluded: “. . . unless it can be said that the evidence here, as a matter of law, does not exclude ‘his (appellant’s) conduct as a responsible cause, ’ the fact that the accident occurred while he was engaged in the act of mounting and inflating the tire would not deprive him of the benefit of res ipsa loquitur. Where the evidence is conflicting- or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur are present. [Citation.] ” (115 Cal.App.2d at p. 229. See also Simmons v. Rhodes & Jamieson, Ltd. (1956) 46 Cal.2d 190 , 195 [ 293 P.2d 26 ]; Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d 436 , 444-445; Gherna v. Ford Motor Co., supra, 246 Cal.App.2d 639 , 648-649; Cordova v. Ford, supra, 246 Cal.App.2d 180 , 187-188; Roddiscraft, Inc. v. Skelton Logging Co., supra, 212 Cal.App.2d 784 , 802; and Reynolds v. Natural Gas Equipment, Inc., supra, 184 Cal.App.2d 724 , 734-735.)

In Baker, as in this case, there was evidence of damage to the bead of the tire following an explosion which occurred while mounting a tire on a so-called Chiysler safety rim. Unlike this case the tire was available, and was inspected by experts. In the opinion of one ‘‘the bead was ‘defective to

The only testimony in the case on the cause of the explosion is that of the manufacturer’s expert, the manager of its tire reliability department experienced in tire testing and product development. He testified that approximately 25,000,000 tires are manufactured each year by the manufacturer and all are inspected by humans rather than by machines. He admitted that some defects get past the inspection system which could cause failure in service of certain types. One such “defect” was a failure of adhesion between the rubber tread and plies (“blows” or “bubbling”). However, during the period from 1952 through 1962 the manufacturer never experienced any bead failure as a result of or during the course of the manufacturing process.

He maintained that no known “defect” can cause a broken bead explosion on a properly mounted tire inflated to an air pressure below 150 pounds per square inch. He also testified that as hump-type rims came into more general use, the manufacture]; received numerous reports from the field of serious broken bead accidents occurring during the mounting process. As a result, it commenced a comprehensive series of tests in order to determine the cause of these accidents and the procedures which might be followed to avoid them. These tests were conducted under his direction between 1958 and 1961.

The field reports, which came from all parts of the United States, revealed certain common characteristics in the accidents: (1) no tire involved in the accidents contained any trace of lubricant being used during the course of the mounting process; (2) every tire showed a crescent-shaped scuff mark or tear mark on the lower sidewall area just above the broken bead area; (3) every bead showed that it had been broken under tension; (4) so far as United States Rubber’s experience was concerned, every tire had been mounted bn a hump-type or' safety rim; (5) every tire was of á-tubed variety./ ' "

He testified that the 300 tests he conducted showed that a

A tire exploding under these controlled conditions had a crescent-shaped scuff mark or crescent-shaped tear in the sidewall rubber in the area of the broken bead, the size varying with the amount of air pressure and the degree of off-centering. This scuff mark resulted from the friction involved when the sidewall area of the tire slid upward against the rim flange following the break in the bead.

The tests further disclosed that as air pressure increased the violence of the explosion increased and the damage to the sidewall of the tire was similarly accentuated. When 90 pounds of air pressure was reached, two breaks in the bead wires were sometimes observed. In all eases the inner tube had a circumferential rip or tear.

These tests were conducted with the tire’s valve core removed, permitting unimpeded inflation at full line pressure.

The expert further testified that he ran tests on tires taken from the production line, in other words, tires that were not defective except for perhaps minor blemishes. He did test tires that were made defective by breaking their beads, and testified that if such tires were lubricated, they always properly seated, with two pounds of air pressure. He never had an explosion with pre-manipulated beads at less than 30 pounds. Unlubricated tires with broken beads always seated with 3-4 pounds of pressure, and never exploded under 50 pounds of pressure.

The expert concluded that in his opinion the explosion was caused by the physical force developed when plaintiff mounted the tire off center with insufficient lubrication while introducing air pressure in excess of 70 pounds. per square inch, or for a period of time approximating 25-30 seconds. Based on a hypothetical question, he was.asked: “Q'. '[D.jo.you have any opinion as to whether or not the. cause of ,the explosion could have been attributed to [sic] by any defect in the manufacture of the tire? A. I do have an opinion, Q. What is

The defendants’ contention in this case is similar to that in Baker, where the opinion recites: “Counsel for respondent [manufacturer] also earnestly contend that the doctrine is inapplicable here because ‘it cannot be said that this accident was more likely caused by respondent’s than by appellant’s negligence’ and ‘the probability that the accident was caused by appellant’s negligence is equally as great as that it was caused by any negligence of the respondent. ’ In commenting upon this the court in Zentz v. Coca Cola Bottling Co., supra [ 39 Cal.2d 436 ], uses the following language (p. 453) : ‘In determining whether such a probability exists with regard to a particular occurrence, the courts have relied both upon common knowledge and the testimony of expert witnesses. ’

“Common knowledge does not tell us that it is more probable that a tire will explode while in the process of being mounted and inflated as a result of negligence upon the part of the person engaged in doing so than from an inherent defect in the tire itself. In the absence of expert testimony we would therefore find ourselves in the same position that the Supreme Court did in Honea v. City Dairy, Inc., 22 Cal.2d 614 [ 140 P.2d 369 ] where it refused to take judicial notice of the technical practices of the bottling industry and therefore could not determine whether it could reasonably be concluded that a defect in a bottle was more probably than not the result of negligence. In such a situation we would be constrained to agree with counsel for respondent that the doctrine was inapplicable. Here, however, as in the Escola ease, there is expert testimony as to the cause of the accident in question, but this is in sharp conflict.” (Italics added; 115 Cal.App.2d at pp.

Baker indicates, as emphasized above, that the question of determining the cause of the explosion of a tire which is being mounted is a matter of expert testimony. In Leonard v. Watsonville Community Hospital, siopra, the court recognized that an inference of negligence which arises from the application of the doctrine of res ipsa loquitur can be rebutted by the explanation of the conduct of the person charged. The opinion states, “Plaintiff contends that the inference of res ipsa loquitur was not dispelled as a matter of law and that therefore the court erred in granting the motion for a nonsuit. The same test is applicable in determining when the res ipsa loquitur inference is dispelled as a matter of law as in deciding when any other inference is conclusively rebutted. [Citations.] It has long been the rule in this state that a nonsuit may be granted only when, disregarding conflicting evidence, giving to the plaintiff’s evidence all the value to which it is legally entitled, and indulging in every legitimate inference which maj>be drawn from that evidence, the court properly determines that there is no substantial evidence to support a verdict in favor of the plaintiff. [Citations.] There is, however, a qualification on this broad general rule. It is settled that where the evidence raises an inference that a fact exists, and either party produces evidence of the nonexistence of the fact that is clear, positive, uneontradicted and of such a nature that it cannot rationally be disbelieved, the nonexistence of the fact is established as a matter of law. [Citation.] In these circumstances the inference is dispelled as a matter of law, and, if the fact inferred is necessary to establish an essential element of the plaintiff’s ease, a nonsuit or directed verdict is proper. [Citations.]” (47 Cal.2d at pp. 514-515.) Although the rule is frequently recognized, it is seldom applied to defeat submission of the question to the trier of fact, because the jury or court, as the case may be, must determine the credibility and weight to be given the testimony concerning

Commencing in 1962, United States Rubber Company adopted the practice of placing a sticker or tab on all passenger tires containing instructions for proper mounting procedures. The tag stated: “Mounting safety precautions: Lubricate and center bead, don’t exceed 40 pounds P.S.I.; stand back when inflating. ’ ’

Questions of fact were presented with respect to the issue of whether the manufacturer should have known that the general instructions to use a lubricant were more respected in the breach than by observance, and, if so, whether special warning should have been given of the particular hazard from safety rims.

The extent to which the general instructions were communicated to the retailer by the manufacturer and the distributor in this instance, and to the plaintiff himself, was also left in dispute because of conflicting evidence concerning the distribution of posters. The employee who instructed the plaintiff testified that no written instructions on the use of the mounting machine or on mounting tires were maintained in the room where the tires were mounted. The assistant manager testified that he had seen instruction posters similar to those disseminated by the manufacturer inside the store and in the service center prior to the accident. He could not recall that any where in the room where the tires were mounted. He stated that the only posters in that room before the accident were advertising posters; and that an instruction poster was placed by the tire-changing machine after the accident. The plaintiff