(concurring in part; dissenting in part). The majority properly finds that the amount of the jury verdict for damages to plaintiff should not be disturbed. The record discloses sufficient evidence of injury so that the award does not shock our conscience on appeal.
In addition to the award of damages to plaintiff for injuries in the amount of $35,000, the jury found for Detroit & Mackinac Railway Company in the amount of $17,500 as third-party plaintiff against Abitibi Panel Products, Ltd, as an impleaded third-party defendant. On motion, the *620trial court granted Abitibi’s request for judgment non obstante veredicto. Abitibi claims that the third-party plaintiff was not entitled to contribution.
My colleagues on the hearing panel act to set aside the judgment non obstante veredicto and reinstate the jury verdict on the ground that the jury found Abitibi negligent and that Abitibi’s negligence was a proximate cause of the accident. They rely on the rule stated by the majority in Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970).
The case of Davis v Thornton, supra, is improperly relied on by the majority in this case. Davis dealt with the problem of foreseeability and intervening causes as they relate to actions by injured parties against primary defendants. In an action by plaintiff against Abitibi, Davis, supra, would apply in testing the acts of Abitibi for actionable negligence for which it could be asked to respond in damages to the injured party. It, however, does not apply in an action for contribution by a railroad carrying goods for a party against whom contribution is sought.
The case before us is controlled by Fowles v Briggs, 116 Mich 425; 74 NW 1046 (1898), which held in essence that although the party loading a railroad car had a duty toward the railroad to use ordinary care in loading the car in question, before the car was accepted for movement the railroad had a duty to inspect the car. A concomitant duty would be not to move a defectively loaded car, thereby avoiding foreseeable injury to others. Had the railroad fulfilled its duty, inspected the car and declined to move it because of improper loading, this accident would not have occurred.
Davis v Thornton, supra, raises serious question *621as to the viability of the Fowles v Briggs, supra, rule in actions by injured parties against shippers. Davis does not, however, deal with the rights and liabilities of parties in actions by tort-feasors one against the other. Davis does not do away with the rule of Fowles that a receiving railroad has a duty to inspect for safe loading cars consigned to it for movement.
Evidence in the trial discloses that the railroad accepted for movement a rail car loaded with wood that was braced and that the braces were not properly secured in place as required for safe loading and movement, which fact was discoverable by ordinary inspection.
The railroad is not entitled to contribution as its breach of duty to inspect the car for safe loading, before accepting the car for movement, bars its recovery from the shipper.
I would affirm the trial court in all respects with costs to the appellees.