(concurring). These cases came to trial after — not before ■ — ■ the effective date of section 3a of Court Rule No 23 (352 Mich xiv). Previous decisions, approving or ordering peremptory verdicts or judgments notwithstanding jury verdicts in *134so-called “assured-clear-distance” cases, do not as a matter of casual course apply now. It is not so easy, today, to write that the question of contributory negligence is one of law for the court rather than one of fact for the jury, the burden of proof in such regard having been lifted from the plaintiff’s shoulders and cast in the case solely as an affirmatively pleadable defense.* That which once justified a directed verdict on assignment of contributory negligence (as in the twin case of Rueger v. Hamling, 355 Mich 489) does not necessarily support a peremptory verdict now.
My views to this point, that the party bearing the burden of proof “cannot assume that he has made out his case or defense,” appear in Waltanen v. Wiitala, 361 Mich 504, 513-515, and Nabozny v. Hamil, 361 Mich 544, 545. If this new factor of transfer of burden to the defendant is to mean anything, it should be recognized and applied, not ignored, as we “divide and re-divide with monotonous regularity”† over .the utility of precedents antedating said section 3a.
I concur in reversal. The defendants bore the burden of pleading and proving the plaintiff driver guilty of contributory negligence and, considering the somewhat unusual facts as related in the Court’s opinion, succeeded in making of such defense no more than an issue for jury determination.
This change was made to align Michigan with the great weight of near universal authority. See City of Dearborn v. Bacila, 353 Mich 99, 110-119.
The expression is that of Mr. Justice Smith, written in Sheppard v. Michigan National Bank, 348 Mich 577, 582.