(concurring). Under date of October 6, 1961, former Justice Talbot Smith proposed an opinion which exposes clearly the tenuous nature of plaintiffs’ cases as presented during first trial thereof. The opinion follows:
“The principal point argued by plaintiffs, and vigorously contested by defendant, is that the train started across the highway without giving a warning signal of any kind and that this was a negligent act. It is the argument of defendant, however, that there is no causal connection whatever between any negligent act of the defendant (should such have existed) and the accident. ‘The driver’s negligence,’ argues the defendant, ‘was the sole cause of the aecident.’
“The defendant’s argument proceeds from the fact that, upon being warned by her companion that a train was proceeding across the highway (the driver had neither seen nor heard it up to that time), the plaintiffs’ driver ‘slammed on’ (these are her words) the brakes of her car and it went immediately into ;a skid. It made 2 complete revolutions, hit and broke a utility pole, and bounced off the pole into •defendant’s engine. It is clear that if the car had not gone into its skid it would have been in no trouble. A vehicle following at a distance of 100 or 150 feet pulled over to the curb and came to a controlled stop without any skidding (according to the sworn testimony of its driver, who was a witness for the plaintiffs). Actually, if plaintiffs’ car had not -skidded it need not even have been delayed on its trip, for the engineer (anticipating, he says, possible trouble from the speed of plaintiffs’ car) put on Iiis brakes as soon as he formed a judgment of her speed and brought his train to a complete stop, leaving open 1 lane of east-bound traffic. This was plaintiffs’ direction of travel.
“In order to make clear, beyond argument, the 'thrust of our opinion, we stress that this is not, as plaintiffs argue, a case of ‘sudden’ emergence, the *238case where a thing of danger suddenly and unexpectedly emerges from a place of concealment, the unexpected apparition searing the wits out of all reasonable drivers. This is a freight train on its tracks in a switching area. The highway upon which plaintiffs were traveling is alongside a large railroad yard and is crossed repeatedly by the various spur tracks described in the record. The train was where it had a right to be, and where there was notice it might be. Moreover, the engine traveled at a speed so modest that it was brought to a complete stop before it had completed its crossing of the 44-foot highway. (We are aware, of course, that plaintiff Sabo says it ‘shot out’ but such verbalizations must give way to the physical facts.)
“Upon such facts, without more, there is considerable merit to defendant’s argument that there' is. no cause in fact attributable to it. But the facts established, and the permissible inferences therefrom, do not end here. Involved also is the matter of the warning signal, emphasized by plaintiff. The-duties of trains approaching crossings have been the subject of much litigation. Among other safeguards it has been provided,1 in substance, that at crossing’s within incorporated cities a warning bell should be sounded before the crossing is reached. Thus in addition to the warning given of the train by its mere presence,2 amply present here, as above-described and as urged by defendant, the legislature-has added another safeguard, that of sound. Herein lies the strength of plaintiff’s case, for despite what may be argued as to the complete visibility of the-train, and the warming therefrom, a jury would be justified in finding, upon the evidence, that the warning of the bell had not been given, in violation of the statute. Had such warning been given, as prescribed, the jury would, further, have been justified in finding that the automobile driver could have effected a controlled stop or a controlled diminution *239in speed in the space available to her, rather than having gone into an uncontrolled skid as the result of ‘slamming on’ her brakes upon becoming aware of the train moving across her path. Clearly, a failure as to one safeguard, even though there is none as to another, is sufficient to ground liability. Jensen v. Michigan Central R. Co. (1894), 102 Mich 176, 179 (bell rung, but whistle not blown).
“We note in closing that the erroneous charge complained of was made only with respect to the case ■of plaintiff Nancy Bardizian. It is arguable, of uourse, that a jury might take it to be equally applicable to her coplaintiff, Darlene Sabo, and thus warrant a new trial as to her also. This determination would seem to be peculiarly within the discretion of the trial judge and we are not critical thereof, but it well illustrates the need for constant vigilance in protecting the rights of all parties in cases consolidated for trial.
“Subject to the above, I concur in the affirmation, without costs, of the orders from which the appeals have been taken.”
This is a borderline case of alleged actionable negligence. In each like case serious doubt confronts the trial judge when the defendant moves •for an instructed verdict. Yet the very fact of serious doubt is the controlling reason for denial of such motion and it is on that ground that my vote Is cast to affirm submission of these cases to the jury.
In Carver v. Detroit & Saline Plank Road Co., 61 Mich 584, 592, 593, the following rule was quoted from Ryder v. Wombwell, LR 4 Exch 32, 38, 39 (19 LT 491, 496):
“There is, in every case, * * * a preliminary •question, which is one of law, viz., whether there is any evidence on which the jury could properly find the verdict [question] for the party on whom the ■onus of proof lies. If there is not, the judge ought to withdraw the question from the jury, and direct *240a nonsuit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant.”
Following such quotation, and having noted with copious citation that such was the established rule-of the English courts as well as that of our own. Court, the writer of Carver’s opinion concluded:
“In all cases of doubt, the proper method is to-submit the evidence to the jury, under proper caution and instructions, to determine whether, from the-facts as they shall find them established by the-evidence, negligence ought to be inferred.”3
By its motion the defendant railroad tested below, and now tests here, the legal sufficiency of' plaintiffs’ proofs as justifying submission to the-jury of the question of actionable negligence. When a defendant in negligence so moves, he stipulates— temporarily for the purpose of his motion — that the-trial judge may and should accept as outright verity that proof and only that part of the proof which may tend to make out the plaintiff’s case. This is. no new formula. It was announced first in Mr. Justice Cooley’s opinion of Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 117, 118 (another rail crossing injury case) :
“For the purposes of any positive instructions-which one party may demand upon the evidence,, he must concede all that his opponent may claim from it. He must, therefore, concede in the present case that the train came in without sounding any other signal than the whistle which called the station; that it approached the station at a velocity which was unusual, and which would have carried it considerably beyond the usual place of stopping; that consequently it must have reached the place-of injury sooner than, and, perhaps within half the *241time the plaintiff had any reason to expect, and that, in fact, others besides himself were surprised by its sudden arrival, and came near being run over and injured by it.”
Concurring, then, in affirmance as to all questions considered in Mr. Justice Carr’s opinion, I am moved to add that we have considered no question whether the verdicts reported for these plaintiffs run counter to the clear or overwhelming weight of the evidence. Whether any act of negligence on the part of defendant was actionably causative or factually remote is, manifestly, the real borderline to which allusion has been made. Accordingly, and for possibly needful future reference, I note what some of us may on occasion overlook, that is, when denial of motion for directed verdict in a negligence case is upheld, the invalidity of such motion only is determined.
Kavanagh, J., concurred with Black, J.CLS 1956, § 466.] 3 (Stat Ann 1957 Cum Supp § 22.272).
McParlan v. Grand Trunk W. R. Co. (1935), 273 Mich 527, 533.
This rule was approved, expressly and unanimously, in Kaminski v. Grand Trunk W. R. Co., 347 Mich 417, 420.