(dissenting). This case illustrates the advisability of the new Michigan General Court Rule 504.2 (effective January 1, 1963), which provides:
“For failure of the plaintiff to comply with these rules or any order of court, a defendant may move *225for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence to the court in any action tried without a jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Thereupon, the court as trier of the facts may determine them and render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 517. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.”
As plaintiff closed in this Schian Case, after calling 4 witnesses, the trial judge could justifiably conclude he had heard from all witnesses who could offer any testimony that would be helpful in arriving at a decision.
Plaintiff and his wife, who had not witnessed the accident, had testified as to what time of day their son had left their home in defendant Milton Schian’s automobile.
Leo Schian, son of defendant Milton Schian, who drove his father’s automobile, was called under the statute for cross-examination, and we quote the following from plaintiff’s statement of facts and brief in regard to Leo Schian’s testimony:
“Leo Schian drove his father’s car with apparent great force, and without apparent effort to avoid it, into the rear of southbound defendant Bierlein’s green and yellow tractor. Both vehicles were on the proper side of 2-lane blacktop Bradford road which is straight and level._
*226“Carl was killed thereat; Leo remembers nothing after stopping for the stop sign at M-81 and seeing no traffic, crossing M-81. * * *
“The front of defendant Schian’s car struck the rear of defendant Bierlein’s tractor with sufficient force to cause Bierlein to fly high enough in the air to permit the Schian car to pass below him, stopping south of where he alighted, and with enough force to demolish both vehicles. * * *
“In this case, Leo Schian has no memory after crossing M-81. We do not know if the accident happened because he was asleep; because he was not looking; or looking, not seeing; because it was deliberate; or whether he saw the white or yellow light on the rear, shining mostly downward.”
Appellant in his statement of facts summarizes the testimony of the last of the 4 witnesses, namely defendant Bierlein, who was called for cross-examination under the statute, as follows:
“According to defendant Bierlein, upon impact he was knocked up into the air, the Schian car passed underneath him, and he landed on the pavement behind the car and tractor, which were ‘tight’ together.”
It is apparent from the record that the court heard argument of counsel before passing upon defendant’s motion and there is no intimation that plaintiff made known that he desired to call or cross-examine any additional witnesses.
The circuit judge’s opinion relating to the motion for directed verdict, delivered from the bench, follows :
“I have read completely the O’Grady [v. Rydman] Case in 347 Mich 606 and the Stevens [v. Stevens] Case in 355 Mich 363, and I point out on the record that it is the opinion of this court that neither case is applicable to the situation before this court for this reason. In each of those cases, the trial court, as trier of the fact, found certain facts to be true on *227the record before it, and the Supreme Court did not disturb those findings of fact. If on the record before this court, similar findings of fact could be made, I would have to deny the motion.
“Certainly counsel are aware of the fact that the court sitting without a jury and as trier of the fact is in the same position as the jury and under the same obligations and at this step of the proceedings, certainly the facts and all reasonable inferences to be drawn therefrom must be taken in the light most favorable to the plaintiff. I believe I have so viewed the record and it is the opinion of this court that viewed in that light, this record sustains the following findings:
“With respect to Lorenz Bierlein, that there is no proof of negligence on this record that was a proximate cause of this accident.
“As to defendant Schian, there is proof of his negligence which was a proximate cause of the accident, and again with respect to defendant Schian, there is no proof on this record of gross negligence on his part.
“Because of those findings, it is the opinion of this court that the motion of defense counsel must be granted and it is granted.”
If the defense had announced that defendant rested instead of moving for a directed verdict, I do not believe there would have been any opinion from any member of this Court that we should reverse Hon. Timothy C. Quinn’s conclusion and judgment that verdict should be for defendants. We are, of course, in this appeal concerned only with the judgment in re defendant Lorenz Bierlein, as plaintiff did not take an appeal from the court’s judgment in favor of defendant Milton Schian.'
Justice Kavanagh states that even though the case was tried without a jury, “The trial court at this stage of the trial is required to consider motions for *228judgment in the same fashion as it would had there been a jury,” and decides that the trial court was forced to conclude the testimony and favorable inferences therefrom in the light most favorable to plaintiff, and then quotes the finding of facts in the case of O’Grady v. Rydman, 347 Mich 606.
The lower court’s opinion discloses that he gave consideration to the case referred to by Justice Kavanagh and concluded that the facts in that case were so different from the facts before him that they were not applicable. It is the writer’s opinion that the record sustains the trial judge’s conclusion.
The trial court used the “viewed in the light most favorable to plaintiff” rule and concluded that the evidence and inferences therefrom sustained the finding that there was proof of defendant Schian’s “negligence, which was a proximate cause of the accident,” although no proof of Schian’s gross negligence, and, “With respect to Lorenz Bierlein, that there is no proof of negligence on this record that was a proximate cause of this accident.”
We find nothing in the record that causes a belief that the trial court, even after viewing the evidence under the rule that came to an end on December 31st, last, and who saw and heard the witnesses, erred and was not justified in finding that plaintiff had failed to prove defendant Bierlein guilty of negligence that was a proximate cause of the accident and, therefore, dissent with Justice Kavanagh’s conclusion that “The judgment of the lower court is reversed, and a new trial granted. Plaintiff shall have costs.” To the contrary, we find that the judgment of the lower court should be affirmed. Costs to appellee.
Carr, C. J., concurred with Kelly, J. Dethmers, J., concurred in result. O’Hara, J., took no part in the decision of this case.