(concurring). Michigan cases which have considered the question whether a defendant’s act is to be deemed a proximate cause of a plain*88tiff’s injury have given only abstract, and often varying, guidelines as to when a fact finder legitimately may determine tbat a negligent act in a chain of acts leading to plaintiff’s injury is a proximate, that is, a liability-predicating, cause. Considering those decisions which have given the widest scope to the concept of proximate cause, the rule in Michigan, in its most liberal form, may be stated thusly:
If defendant’s negligent act did not directly cause the injury for which plaintiff seeks recovery but, instead, it subjected plaintiff to an increased exposure to the risk of occurrence of another event which did occur and did cause plaintiff’s injury, then defendant’s negligent act is a proximate cause of the injury and defendant may be held liable therefor if defendant should have foreseen that some such injury might be caused by such other event. 1
Such a formulation provides a consistent rationale for a variety of cases in which there are one or more intervening events between defendant’s negligent act and the particular injury for which plaintiff is seeking recovery. Thus it explains Patterson v. Detroit, L. & N. R. Co. (1885), 56 Mich 172, where *89plaintiff, whose passage was blocked by defendant’s train across the highway, was permitted to recover damages resulting from his having missed another train because of the delay. It explains why a defendant who negligently injures plaintiff is also liable for further injuries done to plaintiff by the malpractice of a seemingly competent physician engaged to treat the injury. See Reed v. City of Detroit (1896), 108 Mich 224. It explains the basis for liability of a negligent defendant for the aggravation of plaintiff’s injury by a subsequent accident to plaintiff, as when a plaintiff with an injured leg slips and falls, increasing the injury to the leg. See Stahl v. Southern M. R. Co. (1920), 211 Mich 350. It explains why a defendant who, in the course of a vehicular accident, negligently exposes plaintiff to the risk of being struck by other vehicles, is liable to plaintiff for injuries incurred when plaintiff is so struck. See Bordner v. McKernan (1940), 294 Mich 411; Maddux v. Donaldson (1961), 362 Mich 425.
Most of our eases which consider the issue of proximate cause say that for it to be found, the injury complained of must have been a “probable” consequence of defendant’s negligent act. If “probable” means, as it undoubtedly does, “more likely than not”,2 then many of the cases in which such language is used themselves give it the lie. Did this Court really mean to say in Reed, supra, that if one goes to a physician for treatment of an injury, it is more likely than not that he will receive negligent medical treatment? If this were true, no one would consult a physician unless he were convinced that he had virtually no hope of recovery anyway. Nor does it comport with common knowl*90edge to believe, as the Court in Stahl, supra, apparently would have us believe, that it is more likely than not that one who is injured in an accident will have his injury aggravated by a subsequent accident. Because of this discrepancy between what the cases say, and, in the lig'ht of their facts, what they rationally must be held to have meant, language of probability has been eschewed in the general formulation, supra, and instead there has been employed language of increased exposure to the risk of occurrence of another event which might cause some injury. This latter language, in my view, correctly reflects the meaning of those cases in which words of probability have been employed injudiciously in defining proximate cause where defendant’s negligent act alone is not the direct cause of plaintiff’s injury.
• It is against this background of the law as I consider it to be in Michigan that we must view the facts of this case of Sutter. A jury has found that defendant Biggs, a doctor, was guilty of actionable negligence in excising plaintiff’s right fallopian tube and ovary3 during an appendectomy in 1940, without having had authority to operate upon plaintiff’s reproductive organs and having thereafter fraudulently concealed such excision until it was discovered in 1959 during the course of surgical removal by another doctor of plaintiff’s left fallopian tube made necessary because of a parovarian cyst thereon. The jury, as it was permitted to do by the trial judge’s instructions, returned a verdict for plaintiff in the amount of $7,500. While the trial judge’s instructions allowed the jury to award damages for defendant’s removal of plaintiff’s right fallopian tube, referred to as her “reserve” fal*91lopian tube, the jury was instructed it could not award damages against defendant for. plaintiff’s subsequent barrenness because such subsequent barrenness was not proximately caused by defendant’s act. We are asked by plaintiff to vacate the judgment below and to remand for new trial on the issue of damages alone, her theory being that the trial judge erred in barring the jury from awarding her damages against defendant for her present barrenness.
As I view the record facts and our law, plaintiff’s claim is not encompassed within even the broad scope of the decisions discussed above, the holdings of which are summarized in the formulation of our concept of proximate cause set forth in the forepart of this opinion. There is nothing in the record before us upon which to base a finding that Dr. Biggs’ negligence in excising plaintiff’s right fallopian tube subjected plaintiff to an increased exposure to the risk that her left fallopian tube would have to be excised for any reason. Thus plaintiff failed to establish a causal connection between defendant’s negligence and the event, excision of her left fallopian tube, which rendered plaintiff barren.
On the record made in this case, for plaintiff to prevail in her attempt to recover damages from defendant for her barrenness, we would have to hold that because defendant’s negligence may have exposed plaintiff to an increased risk of barrenness, in that she no longer had a right fallopian tube to rely upon as a reserve in the event she subsequently lost her left tube, when barrenness actually did eventuate, defendant was liable therefor even though his negligence was in no way causally related to the ultimate event, loss of the remaining tube, which produced barrenness. Such a holding would carry us far beyond any Michigan case I have found, and probably would have a profoundly un*92settling effect upon onr law of negligence. For example, if that were to be the law, one could then argue that a plaintiff who has lost one leg as a result of a defendant’s negligence has been exposed to an increased risk of complete ambulatory immobility upon the loss of the other leg; and if he should lose that other leg a year later, or, as in Sutter, 19 years later, in an automobile accident while a guest passenger, or as the result of sickness, or in any other manner not connected with defendant’s negligent act, would not the defendant be held liable in damages for plaintiff’s resultant immobility? Such a result would be logically imperative if plaintiff’s theory of recovery in the case at bar were adopted by this Court.
The extent to which a defendant properly should be liable for his negligence is a troublesome problem which merits further attention by judges and by scholars. While I am not entirely satisfied that a defendant whose negligence exposes his victim to increased risk of future injury upon the occurrence of an event independent of defendant’s negligence should escape liability for such future injuries when they in fact occur, I am not yet persuaded that it would be consistent with sound policy and conducive to just results to sanction the enormously expanded vistas of liability which would be opened if plaintiff Sutter’s theories were accepted..
Although plaintiff cannot, on the record made in this case, recover damages for her barrenness, I agree with my Brother Smith that she was entitled to recover damages for the loss of a “reserve” fallopian tube. The evidence presented clearly established that the female reproductive system is provided with two fallopian tubes and that, if one is lost, fertility is maintained unimpaired by the functioning of the other. As long as a woman has both *93tubes, damage to one tube will not render her barren.
By wrongfully excising Miss Sutter’s right fallopian tube, defendant deprived her of her fertility reserve provided by nature. For this, he may be held liable in damages. The situation is, of course, unusual, simply because there are not many instances in which the body is provided with two means of performing the same function, either of which will completely fulfill that function in the absence of the other. A situation somewhat analogous to the loss of one fallopian tube is the loss of one eye, and in such a case the language used by some courts indicates that the jury, in determining damages, may consider the fact that plaintiff has been deprived of a reserve eye.4
The amount of damages to award for the loss of the reserve against barrenness, provided by the possession of two fallopian tubes, is, of course, difficult to assess. Such difficulty, however, is not enough to preclude plaintiff from recovery.
“The injured party has consented to enter into no relation with the wrong-doer by which any hazard of loss should be incurred; nor has he received any consideration, or chance of benefit or advantage, for the assumption of such hazard; nor has the wrong-doer given any consideration, nor assumed any risk, in consequence of any act or consent of his. The injured party has had no opportunity to protect himself by contract against any uncertainty in the estimate of damages; no act of his has contributed to the injury; he has yielded nothing by consent; and, least of all, has he consented that the *94wrong-doer might take or injure his property or deprive him of his rights, for such sum as, by the strict rules which the law has established for the measurement of damages in actions upon contract, he may be able to show, with certainty, he has sustained by such taking or injury. Especially would it be unjust to presume such consent, and to hold him to the recovery of such damages only as may be measured ivith certainty by fixed and definite rules, when the case is one which, from its very nature, affords no elements of certainty by which the loss he has actually suffered can be shown with accuracy by any evidence of which the case is susceptible. [Emphasis added.] Is he to blame because the case happens to be one of this character? He has had no choice, no selection. The nature of the case is such that the wrong-doer has chosen to make it; and upon every principle of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case, and the difficulty of accurately estimating the results of his own wrongful act. Upon what principle of right can courts of justice assume—not simply to divide this risk, which would be thus far unjust—but to relieve the wrong-doer from it entirely, and throw the whole upon the innocent and injured party? Must not such a course of decision tend to encourage trespasses? * * *
“The law does not require impossibilities; and cannot, therefore, require a higher degree of certainty than the nature of the case admits. And we can see no good reason for requiring any higher degree of certainty in respect to the amount of damages, than in respect to any other branch of the cause. Juries are allowed to act upon probable and inferential, as well as direct and positive, proof. And when, from the nature of the case, the amount of the damages cannot be estimated with certainty, or only a part of them can be so estimated, we cau see no objection to placing before the jury all the *95facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit. This should, of course be done with such instructions and advice from the court as the circumstances of the case may require, and as may tend to prevent the allowance of such as may be merely possible, or too remote or fanciful in their character to be safely considered as the result of the injury.
“In the adoption of this course it will seldom happen that the court, hearing the evidence, will not thereby possess the means of forming a satisfactory judgment whether the damages are unreasonable, or exorbitant; and, if satisfied they are so, the court have always the power to set aside the verdict and grant a new trial.” Allison v. Chandler (1863), 11 Mich 542, 553-556.
In this case, the trial judge’s charge adequately instructed the jury that it could award plaintiff damages for the loss of a reserve tube, of which loss defendant’s negligence was the undoubted cause, but that it could not award damages for plaintiff’s barrenness, which defendant did not proximately cause. Under the law as it now exists, plaintiff was entitled to no more.
Affirmed. Costs to defendant.
Cf. Payne, Foresight and Remoteness of Damage in Negligence, 25 Mod L Bev 1, 12 (1962) :
“Ulterior harm is a convenient term to describe harm caused or aggravated by some contingency which occurs after the event which the defendant ought to have foreseen and guarded against and which [contingency] is causally independent of that event. * * * The
principle running through the eases seems to be that a defendant is liable for ulterior harm only if the wrongful state of affairs brought about by his negligence exposes the plaintiff to a special risk of injury from the sort of contingency which causes the ulterior harm. The common sense notion underlying this rule is that of causal potency; the defendant’s negligence renders the plaintiff specially vulnerable to harm from the sort of contingency which occurs and therefore is the cause of it.”
And see Tozer v. Michigan C. R. Co. (1917), 195 Mich 662, 666, and Baker v. Michigan C. R. Co. (1912), 169 Mich 609, 618, 619, as quoted in LaPointe v. Chevrette (1933), 264 Mich 482, 491.
See, e.g., Price v. Neyland (1963), 115 DC App 355, 359 (320 F2d 674, 678).
In the balance of this opinion I shall refer only to the fallopian tube.
See Lopez v. Price (1958), 145 Conn 560 (145 A2d 127); Dunn v. Easley (1963), 42 Ala App 51 (151 So 2d 791); Rivers v. Leitman (CA 4, 1963), 317 F2d 102. The situation is not precisely analogous, since some aspects of vision, e.g., depth perception and peripheral vision, are impaired when one has only one eye, while this record discloses that a woman with but one fallopian tube is as fertile as a woman with two.