(concurring separately). Since the handing down in 1958 of Dearborn v. Bacila, 353 Mich 99, 108-119, the burden of pleading and proving contributory negligence has been carried by the defendant. Nowhere in this testimonial record or in the majority opinion do I find any hint of proof, or permissible inference from proof, that would justify a finding that the plaintiff was contributorily negligent. Had the case been tried to a jury, the plaintiff would have been entitled to a peremptory instruction ousting the pleaded defense of contributory negligence from consideration in the jury-room.
*60As for the majority’s construction of an opinion by copying a long passage of oft-mulled Gibbard v. Cursan (1923), 225 Mich 311,* I can only say that there the Court dealt with a pedestrian versus motortruck collision; the pedestrian 13-year-old having been overtaken and struck from the rear by defendants’ truck while on her way home from school. The young lady was walking with other students on or near the right-hand edge of a paved road in the open country, and the defendant driver admitted “having seen the girls on the pavement when he was at least 10 rods distant.” (Gibbard at 315.) The Court had before it only a question of contributory negligence interwoven with a question of subsequent or discovered negligence, sometimes but erroneously dubbed gross negligence.
If anything written in Gibbard has application here, more so does the doctrine written for its notably illustrious forefather, the “jackass case” of 1842 (Davies v. Mann, 10 M & W 546 [152 Eng Rep 588, 19 Eng Rul Cas 190]), to which we paid tribute in Dunn v. Detroit (1957), 349 Mich 228, 233, 234. The ultimate fact here is that the defendant O’Lear’s exclusively causal—and therefore actionable—negligence was established by his own testimony within Bahel v. Manning (1897), 112 Mich 24; Bauer v. Saginaw Co. Agricultural Society (1957), 349 Mich 616 and Felgner v. Anderson (1965), 375 Mich 23. By that testimony plaintiff’s steady inaction was made causally remote as a matter of law.
On foregoing ground I concur in reversal and remand.
Adams, J., concurred with Black, J.Most recently in LaCroix v. Grand Trunk W. R. Co. (1967), 379 Mich 417, 422-426.