Lumbard, Chief Judge, and Waterman and Anderson, Circuit Judges. Anderson, Circuit Judge (concurring). Waterman, Circuit Judge (concurring).
The plaintiff, John Mull, appeals from a judgment of the United States District Court for the Southern District of New York, entered December 13, 1965, for the defendant, Ford Motor Company, upon a directed verdict after trial, in a diversity negligence action, and from an intermediate order entered August 6, 1962, also in favor of Ford Motor Company, dismissing the cause of action for breach of warranty on the ground that appellant Mull was neither an ultimate consumer nor a user of the vehicle that caused the accident. We find no error in the decisions below, and affirm.
On Sunday morning, December 21, 1958, Mull was packing his car, which was parked on Madison Avenue between 40th and 41st Streets in Manhattan. While he was stationed at the rear of the car to arrange the trunk, he was struck by a 1958 Ford taxi cab, owned by the Colt Company, Inc.
As stipulated by both parties' attorneys in the pre-trial order,
"The said taxi cab on December 21, 1958 was operated by one Max Fermaglick, in a southerly direction on Madison Avenue approaching 41st Street. The pace of traffic caused him to reduce the speed of the cab. The cab stalled. Fermaglick got out of the cab and opened the hood and found he was unable to correct the trouble. He closed the hood and returned to the cab and attempted to move it to the curb by using the accelerator and starter of the cab, a process known as 'bucking.' While Fermaglick was so engaged, the hood flew up in front of the windshield, blocking his vision. Fermaglick did not stop the cab but proceeded with his 'bucking' maneuver to bring the cab to the curb. As he got near the curb, the cab struck the plaintiff pinning him between the rear of his car where he was standing engaged in loading his car and the front of the cab."
It was also stipulated that the taxi was manufactured by the Ford Motor Company and delivered directly to the Colt Company, Inc., in New York City, on September 2, 1958. It had been driven 35,000 miles at the time of the accident.
Mull commenced this action against the driver, the Colt Company, Inc., other related corporations, and their controlling shareholders,*fn1 the King Ford Motors, Inc. (the agency through which the taxi was purchased), and the Ford Motor Company. In January 1963, the Colt Company and its related corporations and shareholders conditionally settled with Mull for the sum of $100,000, and later, the case against King Ford Motors, Inc. was discontinued. Ford Motor Company was the only remaining defendant at the time of trial.
Evidence was offered to show that a proximate cause of the accident was a defective "detente spring" in the gear shift mechanism. At the end of the plaintiff's evidence the court reserved decision on a motion to dismiss the complaint. At the close of testimony, upon reviewing the pre-trial order and the transcript of testimony, Judge Cooper directed a verdict for the defendant. We affirm on the ground that the facts stipulated in the pre-trial order reveal that the cab driver's negligence was an effective intervening and superseding cause as a matter of law, breaking the causal chain, thus relieving Ford from liability for its alleged negligence in design and manufacture. I would further affirm Judge Edelstein's earlier order dismissing plaintiff's cause of action for breach of warranty for the reasons stated in his opinion, Mull v. Colt Co., 31 F.R.D. 154, 168-174 (S.D.N.Y.1962).
The plaintiff is bound by the statement of facts in the pre-trial order, which was stipulated to by his attorney.
We are reinforced in this conclusion here because the critical sentences contained in the stipulation came verbatim from plaintiff's own pre-trial memorandum,*fn2 and closely parallel statements in plaintiff's amended complaint.*fn3
It is a primary purpose of pretrial stipulations, and pre-trial procedures in general, to simplify the issues of fact and to eliminate those not relied upon. Carefully drawn and negotiated stipulations avoid confusion, and save time and expense for the parties, as well as for the courts. Because of this, stipulations ought to be binding, not only to do justice between the parties, but to encourage their effective use. No request was made before Judge Cooper to modify this stipulation at trial. We must decide the questions on appeal on the basis of the facts as stated in the stipulation.
The question remains, whether, as a matter of law, the facts set forth in the stipulation should constitute such intervening negligence as to break the causal chain ...