Middlesex. Five civil actions commenced in the Superior Court on September 13, 1974, September 16, 1974, November 12, 1974, July 15, 1975, and June 6, 1976, respectively. The cases were tried before Ronan, J. The Supreme Judicial Court granted a request for direct appellate review.
Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.
Practice Civil, Charge to jury, Argument by counsel. Sale, Warranty. Uniform Commercial Code, Warranty. Evidence, Business custom. Negligence, Manufacturer, Motor vehicle.
The opinion of the court was delivered by: Hennessey
At the trial of products liability actions, arising out of an accident involving a motor home, the Judge erred in instructing the jury that misuse or abuse of the product would be a complete defense where there was no evidence that the accident had resulted from an unforeseeable misuse of the motor home. [638-641]
At the trial of products liability actions, arising out of an accident involving a motor home which caught fire after hitting a cable fence at the side of a highway, the Judge did not err in refusing to instruct that the jurors were not to consider industry custom and practice to determine if the motor home was of merchantable quality. [641-643]
In negligence actions, arising out of an accident involving a motor home, against the manufacturers of the motor home and its chassis, the Judge correctly charged the jury that the defendants were held to the standard of the ordinary, reasonably prudent manufacturer in like circumstances and there was no error in his refusal to instruct that " manufacturer who undertakes to manufacture and market a product for use by consumers is held by the law to an expert's knowledge of the arts, materials and processes relating to his product". 
At a civil trial, the Judge did not err in refusing to allow the plaintiffs' counsel to comment in closing argument on the defendant's failure to call an expert witness who had been present throughout the trial and to argue the inference that the expert's testimony would have been unfavorable to the defendants. [643-644]
These are five consolidated actions, four for wrongful death and conscious suffering, and one for personal injuries, arising out of an accident on the Massachusetts Turnpike. The plaintiffs' four decedents perished when the motor home in which they were riding caught fire and exploded after hitting a cable fence at the side of the highway. There was agreement among the parties' experts that the collision might have occurred at a speed as low as twenty-five miles an hour. The plaintiff Albert L. Mead, a passing truck driver, tried to rescue the four from the burning vehicle, and he was injured in the attempt.
The motor home had been manufactured by The Wickes Corporation (Wickes) on a chassis manufactured by Chrysler Corporation (Chrysler). At the trial, the plaintiffs endeavored to prove by expert testimony that the motor home was negligently designed and unmerchantable. The plaintiffs alleged that certain conscious design choices by the defendants were responsible for making an otherwise minor collision fatal. The jury returned verdicts for the defendants in each case on both the negligence and the warranty counts. The plaintiffs appealed, and this court allowed direct appellate review.
We hold that it was error for the trial Judge to instruct the jury on the issue of misuse. Accordingly, we reverse the judgments and remand the cases for a new trial on the warranty claims. Contrary to the plaintiffs' assertions, we find no error in the charge with respect to the negligence claims, as will be seen (infra). We discuss the remaining assignments of error only in so far as they may arise at a new trial.
1. The facts. On June 8, 1974, about midnight, Gerald Back, Laura Franceschi, Warren King, and Laurie Yeslow, all students at the University of Massachusetts, were traveling west on the Massachusetts Turnpike in a twenty-three-foot motor home borrowed by Back from a friend of his brother. The vehicle was traveling at an estimated fifty miles an hour when it passed a truck driven by the plaintiff Mead. The motor home left Mead's sight as it rounded a curve, veered off the road into a reflector post and cable fence, and tipped over on its side.
Mead testified that as he rounded the curve he saw the motor home overturned at the side of the road and that "all at once the whole vehicle burst into flames from one end to the other." Mead stopped his truck, as did Wendall W. Betts, another truck driver, and the two attempted to free the screaming occupants by breaking the windshield. Their efforts ceased when an explosion shattered the windshield, killing the occupants and throwing Mead some distance from the vehicle.
The record contains no explanation as to why the motor home struck the fence. Mead did not observe anything unusual about the motor home when it passed his truck. Betts had seen the motor home sway as it changed lanes, and he thought the vehicle had a flat tire. The plaintiffs' theory is that a tire blew out, but the accident reconstruction ...