(dissenting). For several reasons I must dissent in this decision.
The issue in this lawsuit is:
Based on the facts as they existed before or at the time of the accident, was the defendant negligent?
The accident occurred on July 13, 1977. On August 26, 1977, the Michigan Department of State Highways and Transportation issued a report recommending that automatic signals be installed at this crossing. This was done.
Before trial the circuit judge granted a motion in limine against reference to the subsequent repairs; When the report was sought by the plaintiff to be introduced in evidence, it was denied by the court. From a verdict of no cause of action against the plaintiff, there is an appeal.
*404The trial court made the correct decision in excluding the report for the following reasons:
1. The report raises collateral issues to be tried, among which are:
a. Is the report of the Highway Department sound and practical?
b. If the report was sound, would it have prevented the accident, in light of the evidence that the decedent ran into the fourth boxcar of a seven-car train?
These are irrelevant to the principle issue.
2. The report is hearsay. It is an out-of-court opinion going to the ultimate decision to be made by the jury. The plaintiff, without attempting to introduce the report, had the right to bring in the author of the report to give his observations and, had he been qualified as an expert and been cross-examined on his expertise, he could have rendered an opinion on the ultimate issue. MRE 703. Further, it automatically opens the door to testimony regarding subsequent remedial measures which is inadmissible under MRE 407.
3. The report is highly prejudicial. A jury could well conclude that if the Highway Department felt that more warning devices were necessary that a priori the defendant was negligent. The exercise of discretion of the trial judge should not be overturned unless clearly erroneous. Grawey v Genesee County Road Comm’rs, 48 Mich App 742, 752; 211 NW2d 68 (1973). A limiting instruction could not overcome this prejudice.
4. The allowance of opinions "that there is a better way” opens the door to all kinds of extraneous evidence and collateral matter unnecessarily burdening the system. As Bramwell in Hart v Lancashire & Y R Co, 21 LTR(ns) 261, 263 *405said in denying introduction of this kind of evidence, it is based on a theory of "because the world gets wiser as it gets older, therefore it was foolish before”.
5. Louisville & N R Co v Williams, 370 (CA 5, 1966), cited by the majority, is indeed similar factually except that in that case, after setting forth many reasons why the judge should not have admitted the report, the court affirmed his decision to do so because they hesitated to overturn his discretion. Also, in that case the author of the report testified and was subject to cross-examination.
I would affirm the trial judge.