(concurring). In this negligence case the trial judge directed a verdict for defendant. He said plaintiff was guilty of contributory negligence. The question, then, brought here by plaintiff, is whether the judge was right in assuming to determine the issue himself.
The problem of contributory negligence is usually complicated by the necessity of taking into account 2 sets of causally-connected circumstances affecting conduct of different persons — in this case the plaintiff motorist and the defendant’s engineer. Whether plaintiff was contributorily negligent depends, in part, on what if anything he had a right to expect of the engineer. This requisite of dual view of the action of 2 persons — “if the danger depends at all upon the action of any other person” — , when a court undertakes consideration of a motion for instructed *274vérdiet -aimed at contributory -negligence, is the essence of and reason for our general rule that “the question of negligence is a question of fact and not of law.” '(Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 118, 119.)
Our difficulty in recent years* is due, I think, to a want of reflective thought upon the fenced-in position the moving party occupies when he asks that the court decide the issue of contributory negligence to exclusion of the jury. Actually, and when a defendant moves that the court so decide, he concedes for the purpose of his motion all that his opponent may rightfully claim from the evidence (Van Steinburg, p 118 of report). So, and in the case before us, he admits for such purpose the excessive and unexpected speed of the football special as testified by plaintiff’s witnesses; the omission of a warning whistle and bell as testified; the unscheduled, untimely and unusual appearance of the special; the obstruction of plaintiff’s view by standing boxcars; the customary appearance of a flagman at the crossing when switching of cars theretofore took place; the absence of a flagman on the occasion in question, and verity of plaintiff’s testimony to the degree of •care exercised for his own safety. If this be right, and our earlier decisions headed by Van Steinburg repeat the test with steady regularity, it is in order to say that this case of Davis marks end of an errant cycle and beginning of a new one. The case must now, as in the days of our Court from Cooley through Fellows, be a very clear one which will justify the court in taking upon itself the responsibility of instructing a verdict on assigned ground of contributory negligence.
Last September, 4 present members of this Court agreed that:
*275“Van Steinburg gives us the very cynosure to the law of contributory negligence as originally adopted in this State. When we return to its course, much of our present difficulty with questions of law and fact assigned to contributory negligence will automatically disappear. Probably no Michigan case has been cited more universally, and followed with greater reverence, by the courts of the respective States and the courts of the United States, than Van Steinburg. It will do us no harm to partake again of its nourishment.” (Clark v. Shefferly, supra, 337.)*
As a Court, and by majority decision in this case, we have now partaken. Those who propose and oppose directed verdicts in negligence cases may henceforth refer to Van Steinburg for reliable guidance.
I concur in reversal.
Smith and Voelker, JJ., concurred with Black, J.See Clark v. Shefferly, 346 Mich 332 at page 335; and Patterson v. Pennsylvania R. Co. (CCA), 238 F2d 645, 649.
Since Clark was decided Van Steinburg has been cited in Ohman v. Vandawater, 347 Mich 112; Kaminski v. Grand Trunk Western R. Co., 347 Mich 417; Barron v. City of Detroit, 348 Mich 213; and Hopkins v. Lake, 348 Mich 382, handed down herewith. During the same period, the court of appeals of the 6th circuit has joined (Patterson v. Pennsylvania R. Co., supra).