Once again1 we consider the problem of damages when the car in which plaintiffs are riding is struck first by one automobile and then,, almost simultaneously, by another.
The plaintiffs are Fred Maddux, his wife, and infant daughter. They were driving in an easterly direction on US-112, near Clinton, Michigan, in a Ford pickup. It had been raining and the pavement was wet. Paul Bryie was following them, both cars traveling at speeds between 35 and 40 miles per hour.. As the cars approached a bend in the road, Mr. Maddux observed a car some 1,500 feet away, skidding towards him, sideways, “in a swinging motion, in an arc” at a high rate of speed. He tried to get beyond a certain point on the highway before the skidding car reached it but was unsuccessful. The 2 cars collided, with extensive damage to both.
While plaintiffs’ car was stopped, with its occupants injured, it was struck again almost immediately, this time by the car following. Again the impact was substantial; Mr. Bryie considered his car to be a total loss.
The cases against the skidding driver, William Donaldson, were discontinued by plaintiffs. The court subsequently dismissed the cases of Mrs. Maddux and her daughter against Mr. Bryie, the driver of the following car, on the ground that “there is no evidence of damage before this jury from which any inference can be drawn in relation to the responsibility of Paul Bryie.” Mr. Maddux’s case was dismissed on the ground that he was guilty of contributory negligence as a matter of law. We will first examine this aspect of the case.
At the time Mr. Maddux observed the car skidding sideways towards him it was about 1,500 feet distant, traveling in the arc of a curve, sideways, at a speed *428between 80 and. 100 miles per hour. Plaintiff tried to avoid a collision by doing what he described as getting “beyond the tangent point in the radius” of the arc the oncoming car was traveling to. To do so, he remained on the highway. It is true that he might have taken, to the shoulder, although there was a 12-foot ditch alongside, and thus, as it turned out, avoided collision. But at the time he made his decision he had no assurance that the skidding car would not itself leave the road. As a matter of hindsight, it would seem better not to have remained on the highway. But Mr. Maddux’s actions are not to be judged in the light of hindsight. He was suddenly imperiled by a serious emergency pot of his own making. In this situation, as we have so often held, the law makes allowance for lack of calm judgment, for failure “to adopt what .subsequently and upon reflection may appear to have been a better method.”2 Whether or not Mr. Maddux was contributorily negligent as to the measures he took in the emergency was an issue, for the jury, under proper instruction.
We now reach the problem of the plaintiff whose injuries have resulted from successive impacts, to all intents and purposes concurrent. This is one of the most baffling of our current legal problems,3 'critical because of the extensive use of expressways upon which large numbers of cars travel at high speeds in close proximity to one another. As to the issue presented, the courts are in the most serious conflict, our own Court dividing 3 ways among the *4296 justices sitting the last time the issue was before us.4 The difficulty arises from the fact that we do not have a “joint” tort in the ordinary sense of the word, and thus it is argued that there cannot be joint and several liability.5 There has been no breach of any “joint” duty owed the plaintiffs by the 2 automobile drivers who successively collided with their car. Obviously the two did not act in concert. Nor is the joint enterprise doctrine applicable, nor master-servant, nor principal-agent. Actually what we have is injury to plaintiffs resulting from the independent and tortious acts of 2 tort-feasors.
There is authority, in this situation, that plaintiff must separate the injuries, ascribing some to one tort-feasor and the balance to the other, much as a housewife separates the colored and the white goods before laundering. Such authority concludes that if plaintiff cannot make such differentiation he cannot recover from either. This type of decision is well illustrated by the case of Adams v. Hall (1829), 2 Vt 9 (19 Am Dec 690). In this case an owner of sheep suffered loss to his flock through the depredations of 2 dogs. The owners he sued jointly. It was shown at the trial, however, that they were not joint owners. In addition, there was no testimony as to which dog killed which sheep. In approving a nonsuit it was held that neither owner was liable for the actions of the other’s dog, merely because they “did the mischief in company.”
However defensible such a result may have been in this and cases similar in principle in an agrarian economy shortly after the American Eevolution (and even this is open to question) we do not regard it *430as precedent governing the liability of automobile owners in what are known as “chain collisions” on today’s highways. It should be unnecessary to spell out the differences between the social problems presented or the judicial policies involved in their solution. When we impose upon an injured plaintiff the necessity of proving which impact did which harm in a chain collision situation, what we are actually expressing is a judicial policy that it is better that a plaintiff, injured through no fault of his own, take nothing, than that a tort-feasor pay more than his theoretical share of the damages accruing out of a confused situation which his wrong has helped to create.6 The mere statement of the policy exposes its aberrations. It is at war with at least the last hundred years of judicial progress. It is, in addition, as Dean Wigmore has pointed out,7' utterly inconsistent with the ratio decidendi of precedents going back at least to the year 16138 when the rule of joint and several liability dispensed with the necessity of plaintiff’s proof of just which ruffian inflicted which injury when he was set upon by 3. The reason behind the rule was impossibility, the impossibility of plaintiff’s proving the origin of each of his injuries. Where the same impossibility exists today, our sensitivity to plaintiff’s injury should be no less than that of the king’s bench to its plaintiff, whose “wounding (which in truth was in a cruel and barbarous manner) at Fakenham in Norfolk” was held to impose joint and several liability upon the defendants. It is clear that there is a manifest unfairness in “putting on the injured party the impossible burden of proving the specific shares of harm done by each. * * * Such results are simply *431the law’s callous dullness to innocent sufferers. One would think that the obvious meanness of letting Wrongdoers go scot free in such cases would cause the' courts to think twice and to suspect some fallacy in their rule of law.”9
The fallacy involved turns upon the word “divisible.” In the case before us, at the conclusion of the 2 impacts, Mrs. Maddux suffered from a fracture of the right femur, of the left patella, and of the right radius ulna, in addition to multiple lacerations of the face. She had passed blood in her urine, suffered an eye injury, and, withal, came psychiatric difficulties, possibly “of an organic toxic basis.” Are such injuries divisible? Theoretically, they may be, possibly they are. We may hypothesize situations in which some participant in the tragedy remains uninjured and observant, or in which the force and direction of the impacts are so markedly different that a reasonable allocation of harm to them may be made. But these cases would present no difficulty. The challenging situation is the one before us, involving 2 substantial impacts with multiple injuries, in respect of which a jury would be well justified in concluding that the plaintiff’s various injuries, may not be identified as to origin. As a matter of fact it may be utterly unrealistic to insist that the plaintiff is suffering merely from a series of wounds, separable either legally or medically. Actually the plaintiff may suffer from a composite injury, the ingredients of which are impossible to identify in origin and impracticable to isolate in treatment. Thus in the case before us, was the blood in the urine the result of the first impact or the second? Will the psychiatric treatment be related to the fracture of the femur, or to the multi*432pie lacerations of the face, with its “jagged facial scars,” or to the overall condition?
There is no need to write at greater length upon the various considerations involved in this type of problem in view of the examination given it by Mr. Justice Black in his concurring opinion in the recent case of Meier v. Holt, supra. It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of this responsibility.10 This merely follows the general rule that “where the independent concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident, the courts generally will not hold the tort-feasors jointly and severally liable.”11
But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the point where the road of authority divides. Much ancient authority, not in truth precedent, would say that the case is now over, and that plaintiff shall take nothing. Some modern courts, as well, hold that this is merely the case of the marauding dogs and the helpless sheep relitigated in the setting of a modern highway. The conclusion is erroneous. Such precedents are not apt. When the triers of the facts decide that they cannot make a division *433of injuries we have, by their own finding, nothing, more or less than an indivisible injury, and the precedents as to indivisible injuries will control. They were well summarized in Cooley on Torts in these words: “Where the negligence of 2 or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert action.”12 The Restatement is in accord. Section 879 reads as follows:
“Concurring or Consecutive Independent Acts.
“Except as stated in § 881 [referring to the apportionment of damages in a nuisance case], each of 2 persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause.”13
The comment upon the above makes its meaning clear:
“A person whose tortious conduct is otherwise one of the legal causes of an injurious result is not relieved from liability for the entire harm by the fact that the tortious act of another responsible person contributes to the result. Nor are the damages against him thereby diminished. This is true where both are simultaneously negligent (see Illustration l14) and also where the act of one either occurs or takes harmful effect after that of the *434other (see Illustration 215). It is immaterial that as between the two, one of them was primarily at fault for causing the harm or that the other, upon payment of damages, would have indemnity against him. It is also immaterial that the conduct of one was seriously wrongful while the conduct of the other was merely negligent or, indeed, blameless. Likewise it is immaterial that the liability of one is based upon common-law rules while that of the other is based upon a statute.”
It is argued, with respect to the above, again quoting the section, that it does not apply “where one of the tort-feasors causes one harm and the other causes another and distinct harm.” "We agree. But such is not our case. As we have endeavored to make clear heretofore if, in truth, the jury is able to determine that one party has caused “one harm,” and another “another and distinct harm,” each will respond for the harm determined by the jury to have been caused by him and that injury alone. The problem before us does not arise if we have “distinct” harms. It is only where the jury is unable to distinguish the harms that difficulty arises.
It is pointed out, also, that one impact took place some 30 seconds after the other. The fact that one wrong takes place a few seconds after the other is without legal significance. What is significant is that the injury is indivisible. The blows of the ruffians referred to in Heydon’s Case, supra, need not necessarily have fallen upon the victim at the same instant of time, and undoubtedly did not. The reason for the rule as to joint liability for damages was the indivisibility of the injuries, not the timing *435of the various blows. As a matter of fact, a distinguished English authority has stated that concurrence, in the law of torts, has no reference to time, except that both torts must precede the damage.16 Carefully reasoned American cases fully support this view.17 The conclusion seems inescapable unless we take the position that “concurrent” actually means “simultaneous,” a position for which there is no well-reasoned authority.
There is no constitutional objection to the imposition of joint and several liability upon concurrent tort-feasors. It is true, as is argued, that no one may be deprived of his life, liberty, or property without due process of law. But it is not clear how this operates to deny a plaintiff, who has suffered manifold deprivations of his own, and without his fault, any recovery whatever against the 2 tortfeasors who injured him. At least, however, the argument puts the issues squarely before us. Is it better, as we asked heretofore, that a plaintiff, injured through no fault of his own, take nothing, rather than that a tort-feasor pay no more than his theoretical share of the damages accruing out of a confused situation which his wrong has helped to create ? Where property is concerned, e.g., where a defendant has confused the goods of another with his own, the holding is threadbare that the defendant must prove which goods are his or all will be awarded to the plaintiff.19 Are we to be less solicitous because the confusion wrought by defendants involves human injury? Many years ago, a Justice, in speaking for this Court, put a pregnant question. He asked, in a ease in which joint liability in tort *436was urged, whether or not the plaintiff “who has thus suffered the wrong” was entitled to a remedy, or whether “the difficulties and dangers [of the suit] are to be thrown upon those presumably in the wrong rather than upon him who was not in fault?” He continued “If in either view injustice is likely to be done, should not the defendants assume or be charged with the risk? Is there, however, likely to be any injustice done in holding them jointly liable? I think not.” 20 Nor do we.
Here, then, is the essence of the problem — "Where is the likelihood of injustice? We think it is in denying the blameless victim of traffic chain collision any recovery whatever. We perceive no reason why his tort-feasors should escape liability because of the very complexity of the injury created by their wrong.
There is no merit in additional points raised. The case is reversed and remanded for new trial. Costs to appellants.
Black, Edwards, Kavanagh, and Souris, JJ., concurred with Smith, J.See Meier v. Holt, 347 Mich 430.
Socony Vacuum Oil Co. v. Marvin, 313 Mich 528, 546.
The literature is abundant and helpful. See Jackson, Joint Torts and Several Liability, 17 Tex L Rev 399; Wigmore, 17 Ill L Rev 458; Prosser, Joint Torts and Several Liability, 25 Calif L Rev 413. See, also, 27 Col L Rev 754 and 19 Calif L Rev 630. Annotations will be found in 9 ALR 939; 35 ALR 409; 91 ALR 759. Textual material in 65 CJS, Negligence, § 102, pp 639-645; 62 CJ, Torts, § § 44, 45, pp 1130-1135; 38 Am Jur, Negligence, § 257, pp 946-948; 52 Am Jur, Torts, §§ 110-112, pp 448-454.
Meier v. Holt, 347 Mich 430.
Plaintiff’s counsel here asserts that he relies upon a joint and several liability. With reference to the ease of the wife and daughteilie asserted “I believe in the case of Cheryl and Velda Maddux that I should ask to have the question of joint and several liability submitted to the jury.”
Landers v. East Texas Salt Water Disposal Company, 151 Tex 251 (248 SW2d 731).
Wigmore, Joint Tort-feasors and Severance of Damages, 17 Ill L Rev 458.
Heydon’s Case (KB 1613), 11 Co Rep 5a (77 Eng Rep 1150).
Wigmore, Joint Tort-feasors and Severance of Damages, 17 Ill L Rev 458, 459.
“This does not mean that the question is always one of fact. Indeed, it is easy to conceive the case of chain vehicular pile-up where, as a matter of law, the last or next to last negligent motorist is shown as having caused no damage to the preccdently injured plaintiff.” Meier v. Holt, 347 Mich 430, 441 (Black, J., concurring).
1 Harper and James, Torts, § 10.1, at p 694.
1 Cooley, Torts (3d ed), p 247. See, also, Prosser, Torts (2d ed), p 226: “Where 2 or more causes combine to produce sueh a single result, ineapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each may be charged with all of it * * * Entire liability rests upon the obvious .fact that each has contributed to the single result, and that no rational division ean be made.”
4 Restatement, Torts, § 879.
“1. A and B negligently collide, harming C, who is close to the scene of the accident. C is entitled to a judgment for the full amount of the damages against either A or B or against both of them.”
“2. A negligently knocks B into tlie street, the impact causing B no substantial -harm. Before B can arise, however, he is negligently run over by C who is acting in the scope of his employment as IPs servant. B is severely hurt thereby- For this harm B is entitled to a judgment for the entire amount of harm from A, C or D or all of them.”
Williams, Joint Torts and Contributory Negligence (1951), p 2.
E.g., Hill v. Peres, 136 Cal App 132 (28 P2d 946).
E.g., Stone v. Marshall Oil Company, 208 Pa St 85 (57 A 183, 65 LRA 218, 101 Am St Rep 904).
Cuddy v. Horn (1881), 46 Mich 596, 603 (41 Am Rep 178).