(dissenting). This will be this Court’s first decision as to what constitutes negligence and due care in hunting accident cases, and its importance becomes more apparent when we realize that over one million hunters purchase licenses each year. During the deer hunting season that just came to a close (December 1, 1964) over 500,000 hunters entered the woods with the following results: Deer toll, 115,000; 11 hunters dead by gunshot, and 48 wounded.
That hunting accidents are not confined to déer hunters is disclosed by the small game record of 1963, showing over 600,000 licenses issued and 12 fatal accidents and 164 nonfatal accidents.
The problem presented in the instant case and the necessity of proper instructions to the jury is disclosed by the trial judge’s summation to the jury of the parties’ claims, as follows:
“The plaintiff claims that the defendant stood up in the front of the boat, and that he, the plaintiff, was seated in the rear of the boat. He claims that the defendant shot at a duck; that the defendant fell down immediately after he shot, and that as he fell his gun discharged the second time and that the shot from the defendant’s gun entered the plaintiff’s left leg.
“It is the claim of the plaintiff that the defendant failed to use due care required under the circumstances then existing. Specifically, the plaintiff claims that Mr. Anderson was negligent in shooting *61his gun from a place or position in which there was danger that he would lose his balance in shooting his gun from a standing position, in a boat, which would rock or roll with the impact, and in shooting his gun at a time when he did not have the boat under complete control, and in pumping or in refilling the chamber of the pump shotgun at a time when he did not have his boat and his gun under complete control.”
A concise statement of the court’s analysis of defendant’s claim is as follows: Plaintiff and defendant were hunting as they had, in the same marsh, on many previous occasions and, on the day of the accident, they were following their normal procedure; that it was not the defendant’s gun that shot the plaintiff; that on or about the time plaintiff was shot the defendant fired only one shot and the shot was fired into the air at a duck and in falling out of the boat after the shot was fired the defendant’s gun did not discharge, but the gun of another party did discharge; that if the jury should find that the shot which struck plaintiff was from defendant’s gun, he is not in any way liable because the discharge would have been purely unintentional and accidental; that the plaintiff assumed the risk of these acts when he joined the defendant in the hunting expedition, knowing from past experiences that they were using a boat and that either or both of them would be standing in the boat and knowing that either or both of them would be firing from a standing position; that the plaintiff participated in placing the boat in the position on the stumps and, therefore, if it was negligently placed plaintiff would have directly contributed to his injury.
From the legal maxim “Volenti non fit injuria,” meaning “that to the consenting no injury is done,” there is created a defense known as assumption of risk. Appellant claims the court erred in not giv*62ing him the benefit of this defense and in denying Ms request that the jury be instructed that: “A person who knows that another has created a danger or is doing a dangerous act and who nevertheless chooses to enter upon or to remain within the area of risk is not entitled to recover for harm unintentionally caused to him.”
We have established the far-reaching effect of this defense of assumed risk by stating:2
“Assumption of risk, of course, is a defense to negligence, whether it be ordinary ‘mere’ negligence, or such negligence ‘plus a wilful and wanton disregard for public safety,’ which go to make up the statutory ‘gross negligence or wilful and wanton misconduct’ required under the guest passenger act. Volenti non fit injuria. Whether the defendant’s conduct was reckless or merely casually negligent is immaterial, for the gist of the defense is that the plaintiff took his chances.”
The 1963 record showing 1,164,360 licenses issued with 18 fatal and 220 nonfatal accidents, does not put hunting in that dangerous category or column where the' careless, negligent, or reckless hunter can excuse himself by saying “you consented, therefore no injury was done — you took your chances, therefore you can’t recover damages.”
Eleven hunters were killed during the 1964 deer hunting season. Over the Thanksgiving weekend (6 p.m. Wednesday to midnight the following Sunday) 26 people were killed in automobile accidents in that less than five-day period. It would be just as logical to apply the doctrine of assumed risk to automobile driving as it would to apply it to hunting. _ •
_ Justice Souris’ opinion disclosing extensive research concludes that this Court has in the past im*63properly applied assumed risk in many cases and recommends a greatly restricted application of this doctrine in the future.
Michigan’s application of this rule has been similar to several States held in high repute, among which are California, Pennsylvania, Massachusetts, New York, and Ohio.
• It is not necessary in this appeal to agree or disagree with Justice Souris’ indictment of the past and recommendation for the future. Suffice it is to agree with his final sentence that: “The trial judge’s refusal to charge the jury on assumption of risk as defendant requested him to do was not error.”
The court instructed the jury:
“If you find that it was the defendant’s gun that shot the plaintiff, then it becomes the duty of the defendant to establish that he was completely without fault; that he was free from any negligence.”
Appellant, in paragraph 7 of his motion for judgment notwithstanding the verdict, stated:
' “That the court erred in its charge to the jury in that it stated that once the jury had decided that it was the defendant’s gun that shot the plaintiff, then the burden of proof shifted to the defendant to show that he was utterly without fault or that the accident was inevitable. This charge improperly shifted the burden of proof and placed upon the defendant a burden of proof that should properly have been the plaintiff’s.”
In his ruling on defendant’s motion, the court answered appellant as follows:
“On the question involved in 7, the court feels duty bound to follow Bahel v. Manning, 112 Mich 24 (36 LRA 523, 67 Am St Rep 381) which was quoted with approval in Bauer v. Saginaw County Agricultural Society, 349 Mich 616.
*64“The charge of the court to the jury was taken practically verbatim from the Bahel Case. I should say in this connection that Í think the rule is too harsh, but being admonished by certain members of the Supreme Court that the trial court shouldn’t attempt to change the law, but should take it as it then exists — required me to give the charge that I gave.
“I think the rule should be something of this nature : That is, when hunters go out together there is a certain element of assumed risk, which is to the effect that the other hunter will not be guilty of failure of due care in connection with the use of firearms and the necessary risks incident to hunting ventures, and that they should not become insurers, as they are under the rule as it is in the Bahel Case.” (Emphasis ours.)
I am in full accord with the trial court’s statement that his charge was “too harsh,” but disagree with his conclusion that he was required to give that harsh rule because of our decisions in Bahel v. Manning and Bauer v. Saginaw County Agricultural Society, supra.
Bahel decided a defendant’s responsibility for shooting plaintiff in “the public room of the hotel,” located in the village of Otsego Lake, Michigan. That the parties were not hunting at the time of the shooting is clearly established by the following quotation from that opinion (p 32):
“He (defendant) had been hunting that day, and had loaded it (the gun) with cartridges. The fact that he believed that he had removed them all from the gun would not relieve him from responsibility in snapping it, when he knew it was pointed directly towards the plaintiff.”
Also, by syllabus 1 in that case which reads:
“One who snaps a gun, knowing it to be pointed qt another person, is guilty of negligence per se, and *65is liable to such person in damages, both at the common law and under the statute (2 How Stat §§ 9110-9113) designed to prevent the careless use of firearms, for injuries occasioned by the discharge of the weapon; and it is no defense that he used the ordinary means to satisfy himself that the gun was unloaded, and believed it to be so when he snapped it off.”
In Bauer this Court considered responsibility for a shot that was fired from a shooting gallery at a fair ■ — a shot that struck a four and one-half year old boy who was walking down the midway with his mother.
Clearly, these two cases are not justification for giving the instruction complained about. They apply to those cases that come within the statute or common-law rule applicable to careless use of firearms, such as pointing guns at people, carelessly firing at targets, firing guns in the vicinity of people, et cetera, but are not applicable in the determination of negligence in hunting accident cases.
The California supreme court3 was confronted with the exact question now presented to this Court, the sole difference being that in the California decision, “Plaintiffs contend that the trial court erred in failing to instruct the jury that ‘One who causes injury to another by discharging a firearm must, in order to excuse himself from liability, show that he was absolutely without fault.’ ”
The California supreme court held that the trial court did not err in refusing to give the foregoing instruction; that the court was correct in instructing the jury that the test was negligence and that negligence is failure to use ordinary care, and that the proffered instruction improperly placed the burden of proof upon the defendant.
An instruction similar to the one we are here considering, namely, that defendant prove “that he was *66completely without fault,” was rejected by the West Virginia supreme court in a hunting accident case,4 the court stating (p 115):
“At common law where one was injured by the discharge of a gun in the hands of another, the only defense available was that defendant was utterly without fault. The modern doctrine, however, has modified this rule, and places the liability upon negligence.”
The court held that reasonable care should be the test, syllabus 1 reading:
“Reasonable care and negligence are relative terms, and the degree of care required of a sportsman using a firearm must be commensurate with the dangers to be avoided.”
The West Virginia supreme court’s conclusion is sustained by Prosser on Torts (2d ed), under “Unavoidable Accident,” § 29, pp 118, 119, which calls attention to the “very strict responsibility” imposed by the “early common law” that:
“The defendant who fired a gun, and accidentally wounded the plaintiff, was held liable unless he could establish that the accident was inevitable — -‘judged utterly without his fault; as if a man by force take my hand and strike you — ’ and the burden was upon him to prove that such was the case,”
but that “the progress of the law has been away from this position” and that (p 119):
“In a few States, it has been said in gunshot cases that the burden is upon the defendant to show that he was free from negligence; but it is not clear that these cases mean to say more than that there is sufficient evidence of negligence in the occurrence of the accident itself to make out a prima facie case.”
*67That the instruction in the instant case would not meet the test as applied in Wisconsin hunting cases is established in Harper v. Holcomb, 146 Wis 183 (130 NW 1128), by the following (p 191):
[Negligence is failure to exercise] “such care as is ordinarily exercised by the great mass of mankind under the same or similar circumstances. * * *
“True, what would be ordinary care under some circumstances would not be under others. * * * As the danger increases and the seriousness of injuries liable to occur from failure to avoid creating, or avoid meeting such danger, increases the quantum of care should increase and, as matter of common knowledge, with the great mass of mankind does increase. But while that is true there is, in circumstances of great danger, the same as in those of little peril, the three well known degrees of care. To say in either situation that one must exercise the very highest degree, in order to be free from failure to exercise ordinary care, would be palpably wrong. Where very much, as where very little, care is required there is the medium denominated ordinary care.” (Emphasis ours.)
The New Hampshire supreme court5 refused to agree with plaintiff that proof that defendant shot and injured plaintiff, mistaking him for a deer, established defendant’s negligence, by stating:
“If the defendant told the truth, he did not fire without taking some precaution. * * * Whether the defendant’s story was entitled to belief, and, if so, whether the precaution he took constituted reasonable care were plainly questions of fact.”
In regard to contributory negligence, the court stated that the jury was entitled to consider the fact that plaintiff did not wear a special gunner’s outfit comprising a red cap and checkered coat,- but had on a pair of khaki pants and common cap and coat.
*68The court emphasized the test should be whether the defendant hunter did what he should reasonably be required to do by reversing the jury verdict for defendant because the court failed to give the following instruction (p 63):
“ ‘One who goes gunning may not reasonably anticipate that a man in the woods will in fact be met, but by reason of the risk that one may be, he is called upon to do what is reasonably required to identify the object before he fires at it. One who hears a rustling and sees the bushes move may not reasonably anticipate that the cause of such rustle in and moving of the bushes is a man instead of a deer, but by reason of the risk that it may be a man instead of a deer, he is called upon to do what is reasonably required to find out.’ ”
A duck hunting accident case was considered by the Louisiana court of appeal.6 The court rejected defendant’s claim that in order to be held liable the proof must show that he was guilty of gross negligence, and stated that the only proof necessary was actionable negligence. The court defined actionable negligence as (p 916):
“It is so difficult as to be, for practical purposes, impossible to define the term ‘actionable negligence’ in a thoroughly comprehensive and all-inclusive sense since the definition must inevitably depend upon surrounding circumstances. But, generally, we think that actionable negligence lies in the failure to exercise that degree of care which should be required of an ordinarily prudent person under the existing circumstances; 38 Am Jur, Negligence, § 2, p 643.”
A similar ruling was made by the supreme court of Massachusetts7 considering a hunting accident *69where plaintiff and defendant were hunting ducks in a flat bottomed boat in a duck blind. In affirming judgment for plaintiff, the court stated (p 66):
“But the liability of one handling or controlling a loaded gun does not, as the defendant contends, depend upon gross negligence; it exists if there is a failure to use the care which would have been used by a person of reasonable prudence in all the attendant circumstances.”
The Pennsylvania supreme court dealt with a case8 “where two persons were out gunning, and one was walking in advance.” Defendant, walking in the rear, accidentally shot and wounded plaintiff. The trial court instructed:
“ ‘If the injury which resulted, and as to which there is no controversy, is one which ordinary care and foresight might not have reasonably anticipated, the defendant is not liable in this action; if, on the other hand, from the nature of the instrument, the position of the parties, the situation as to the position of timber, bushes, or undergrowth, the position of the gun in its relation to the person injured, the defendant ought to have foreseen that there might be such an accident as this, if it was a suggestion of ordinary prudence and foresight that the plaintiff might be injured by the discharge of the defendant’s gun, he would be responsible in damages for the negligence.’ ”
In approving the instruction and affirming judgment for plaintiff, the Pennsylvania court stated (p 608):
“Where the standard of duty is not fixed, but varies with the circumstances as developed by the testimony, the question of negligence is for the jury. No fixed standard could he applied to the facts of this case. It was for the jury, under proper *70instructions, to determine whether the defendant had exercised due care.”
Unfortunately, the trial court erroneously decided that our decisions forced him to give the instruction he considered “too harsh.” That instruction compelling defendant to prove he was without fault if the jury believed his gun shot plaintiff constituted reversible error, especially following the trial court’s remark made during the examination of the jury that an injury such as plaintiff suffered could not have occurred but for somebody’s fault.
A majority conclusion as to what constitutes negligence and due care in hunting accident cases is expressed in various ways in the cases referred to in this opinion, and we quote from same with the following summation:
West Virginia — “The degree of care required of a sportsman using a firearm must be commensurate with the dangers to be avoided.”
Louisiana — “Actionable negligence lies in the failure to exercise that degree of care which should be required of an ordinarily prudent person under the existing circumstances.”
Pennsylvania — “If the injury which resulted, and as to which there is no controversy, is one which ordinary care and foresight might not have reasonably anticipated, the defendant is not liable in this action.”
Massachusetts — “Liability * * * exists if there is a failure to use the care which would have been used by a person of reasonable prudence in all the attendant circumstances.”
Wisconsin — Negligence is failure to exercise “such care as is ordinarily exercised by the great mass of mankind under the same or similar circumstances.”
*71This majority view of all the States is not in conflict with our recent decision in re negligence and dne care,9 and both will provide guidance in determining due care and negligence on retrial of this case and a guide to bench, bar, and sportsmen, in accident cases in the future.
The judgment should be reversed and the case remanded. Costs to appellant.
Waltanen v. Wiitala, 361 Mich 504, 508.
Jensen v. Minard, 44 Cal 2d 325 (282 P2d 7).
Koontz v. Whitney, 109 W Va 114 (153 SE 797).
Webster v. Seavey, 83 NH 60 (138 A 541, 53 ALR 1202).
Normand v. Normand (La App), 65 S2d 914.
Adams v. Dunton, 284 Mass 63 (187 NE 90).
Winans v. Randolph, 169 Pa 606 (32 A 622).
Frederick v. City of Detroit (June, 1963), 370 Mich 425.