(dissenting). I do not approve the practice of directing verdicts for plaintiffs' in negligence *200cases. For reasons see separate opinions of Nabozny v. Hamil, 361 Mich 544, and Cooke v. Brown, 365 Mich 172. Even when proof justifies ruling, as a matter of law, that the party charged stands guilty of negligence per se, there invariably remains the typical jury question whether such adjudged negligence contributed in fact to the result complained of.' Such is the general rule. Spencer v. Phillips & Taylor, 219 Mich 353; Beebe v. Hannett, 224 Mich 88; Arvo v. Delta Hardware Co., 231 Mich 488; Comstock v. General Motors Corp., 358 Mich 163; Cooley on Torts (2d ed), p 81; Prosser on Torts (2d ed), § 50, “Functions of Court and Jury,” p 282. The facts shown here, appearing as they do with fair detail in Mr. Justice Kavanagh’s opinion, do not suggest that we should depart from it. Hence, for erroneous direction of a verdict in favor of this plaintiff, I would reverse.
There is another reason which, in my view, requires reversal. Amendments of pleadings should always be allowed on motion save only where surprise thereof, say on eve of trial or during trial, puts the opposite party in position where he is compelled to choose between (1) a motion for continuance— with attendant loss and expense of subsequent preparation anew—or (2) proceeding to trial of a new issue with respect to which he is not preparedly ready. In such instance of surprise a motion to amend should, of course, be denied.
Here the defendant sought at pretrial, well before trial, the right to amend by pleading under Court Rule No 23, § 3a (1945), that the plaintiff was guilty of contributory negligence. The time element considered, I hold that it was an abuse of discretion to deny defendant’s motion to amend. One of the express purposes of old as well as new section 4 of *201Court Rule No 35 was to provide—at pretrial—a time and a deadline for necessary amendments in order that the controlling pretrial statement or summary actually “control the subsequent course of the action” and provide a beginning time for the exercise of discretion anent motions for leave to amend pleadings. See section 4 of 1945 Court Rule No 35 (Honigman, Michigan Court Rules Annotated, p 353) and present section 4 of Court Rule No 35 (Honigman, 1959 Supp, pp 70-77).
I vote to reverse and remand for new trial and with award of costs to defendant.
Otis M. Smith and Adams, JJ., took no part in the decision of this case.