Souris, J.
This is an appeal from a directed yerdict of no cause of action in an automobile negligence case. The Court of Appeals, by divided vote, affirmed. 1 Mich App 362.
Action was brought to recover damages arising from the defendant’s alleged negligence in causing his automobile to strike his two-year-old granddaughter as he hacked it out of its garage. The evidence, on view favorable to plaintiff, discloses that defendant, 76 years of age, while in the farmhouse he shared with his daughter and her family, told his daughter to dress and to put outdoor clothes on his granddaughter and his four-year-old grandson and that she proceeded immediately to do so; that all planned to drive to town with him in his car; that he walked about 50 feet from the house to the garage inside which his car was parked, its engine having been started earlier to warm up; that he entered the car, looked in the rear-view and side-view mirrors, immediately put the car into backward motion and, after traveling no more than 3 or 4 feet, struck his granddaughter, causing the injuries for which damages are sought in this action.
In directing the verdict of no cause, the circuit judge stated that “the defendant was not put on notice that there were any children there [in back of the car parked in the garage] at all.” We may presume therefrom that the circuit judge had in mind such cases as Kinsler v. Simpson (1932), 257 Mich 7, and Hopkins v. Lake (1957), 348 Mich 382, [525]*525in which the pertinent law of Michigan was stated in the latter case to he that:
“Common-law standards of care require reasonable observation by a person baching a motor vehicle, and this is especially true where the person knows, or should know, that children are likely to be affected by such backing.” 348 Mich 382, 389, 398.
As we read the circuit judge’s opinion granting defendant’s motion for a directed verdict, he held as a matter of law that the proofs were insufficient to establish that defendant owed any duty of due care to the infant granddaughter his car injured and that his- reason for so holding was that the evidence failed to disclose that defendant knew, or should have foreseen, that the children were, or would be, within the zone of danger.
"We are not prepared to conclude as a matter of law, as did the circuit judge, that the jury could not properly have found that the defendant knew, or should have foreseen, that the children were likely to be in the zone of danger created by his act of backing the car out of its garage.
Defendant testified that when he left the house to back the ear out of its garage, the children were still in the house and their mother had not yet put their outdoor garments on them. He also testified that it usually took him only one minute or, if he walked slowly, two minutes, to walk the 50 feet from, the house to the garage and that, on the day of the accident, he started backing the car as soon as he entered it and had looked in the rear-view and side-view mirrors, the car’s engine having been started and the garage door behind the car having been opened earlier in the morning. Prom this testimony the jury would have been justified in finding that defendant did not know, and should not be held to have foreseen? that the children would be behind [526]*526his car so soon after his having left them in the house. On the other hand, it would have been equally within the jury’s province to have found that defendant should have known that the children could have been dressed and could have run out of the house and into the zone of danger behind the car during the two minutes it usually took the aged defendant to cover the same distance walking slowly and the additional time it must have taken him to enter the car, make his ineffectual observations through his rear- and side-view mirrors, and put the car in backward motion.
The jury should have been allowed to decide that fact issue of foreseeability of harm to the children, Palsgraf v. Long Island R. Co. (1928), 248 NY 339, 345 (162 NE 99, 59 ALR 1253), and it should have been instructed that, if it found that defendant had or should have had such knowledge, the law imposes upon the defendant a duty owed to the children to exercise such care and diligence as a reasonably prudent person in similar circumstances would consider reasonably necessary for the safety of the children. What we say here is nothing more than that it was for the circuit judge to say that, if the jury found that as a matter of fact a reasonably prudent person should have foreseen the presence of the children in the zone of danger, then, as a matter of law the defendant owed to the injured child a duty of due care. If such duty arose, it then would become the jury’s task to determine, as a matter of fact, whether the defendant’s conduct measured up to the duty of care imposed upon him by the law. Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise, When they do, they must be submitted to [527]*527the jury, our traditional finders of fact, for ultimate resolution and they must he accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.
Instead of submitting the foreseeability of risk of harm issue of fact for jury determination, the cir[528]*528cilit judge himself determined that “the defendant was not put on notice that there were any children there at all” and, consequently, he concluded that defendant owed no duty to the children for breach of which he could be held liable in this case of Bonin to the plaintiff.
Had the circuit judge defined for the jury defendant’s legal duty of due care, dependent upon the jury’s finding on the fact issue of defendant’s knowledge of the foreseeable risk of harm to others, there was sufficient evidence in this record to require submission to the jury of the additional fact issue of defendant’s breach of such duty.
Defendant’s view of the area behind his car was narrowly limited, yet he proceeded to back the car out of the garage without sounding his horn or giving other, oral, for example, warning of his intended action. Furthermore, the garage was a two-car garage and the defendant’s car was in the stall farthest from the house. The stall nearest the house was empty and its overhead door was closed. Had defendant opened that door, his view from his-seat in the car of the area from the house to the garage would have been enlarged substantially. The jury would have been entitled to find, although certainly not required to do so, that due care required defendant to take any or all of such cautionary measures before backing his car out of the garage and that his failure to do so constituted actionable negligence.
Reversed and remanded for new trial.. Costs to plaintiff. _
T. M. Kavanagh, C. J., and Dethmers and Adams, JJ. concurred with Souris, J.
Black, J., concurred in result.
Harper and James discuss the functions of judge and jury in such cases this way:
“The jury usually decides what conduct reasonable care would call for in the case before them, and also what was the conduct of the parties.
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Souris, J.
This is an appeal from a directed yerdict of no cause of action in an automobile negligence case. The Court of Appeals, by divided vote, affirmed. 1 Mich App 362.
Action was brought to recover damages arising from the defendant’s alleged negligence in causing his automobile to strike his two-year-old granddaughter as he hacked it out of its garage. The evidence, on view favorable to plaintiff, discloses that defendant, 76 years of age, while in the farmhouse he shared with his daughter and her family, told his daughter to dress and to put outdoor clothes on his granddaughter and his four-year-old grandson and that she proceeded immediately to do so; that all planned to drive to town with him in his car; that he walked about 50 feet from the house to the garage inside which his car was parked, its engine having been started earlier to warm up; that he entered the car, looked in the rear-view and side-view mirrors, immediately put the car into backward motion and, after traveling no more than 3 or 4 feet, struck his granddaughter, causing the injuries for which damages are sought in this action.
In directing the verdict of no cause, the circuit judge stated that “the defendant was not put on notice that there were any children there [in back of the car parked in the garage] at all.” We may presume therefrom that the circuit judge had in mind such cases as Kinsler v. Simpson (1932), 257 Mich 7, and Hopkins v. Lake (1957), 348 Mich 382, [525]*525in which the pertinent law of Michigan was stated in the latter case to he that:
“Common-law standards of care require reasonable observation by a person baching a motor vehicle, and this is especially true where the person knows, or should know, that children are likely to be affected by such backing.” 348 Mich 382, 389, 398.
As we read the circuit judge’s opinion granting defendant’s motion for a directed verdict, he held as a matter of law that the proofs were insufficient to establish that defendant owed any duty of due care to the infant granddaughter his car injured and that his- reason for so holding was that the evidence failed to disclose that defendant knew, or should have foreseen, that the children were, or would be, within the zone of danger.
"We are not prepared to conclude as a matter of law, as did the circuit judge, that the jury could not properly have found that the defendant knew, or should have foreseen, that the children were likely to be in the zone of danger created by his act of backing the car out of its garage.
Defendant testified that when he left the house to back the ear out of its garage, the children were still in the house and their mother had not yet put their outdoor garments on them. He also testified that it usually took him only one minute or, if he walked slowly, two minutes, to walk the 50 feet from, the house to the garage and that, on the day of the accident, he started backing the car as soon as he entered it and had looked in the rear-view and side-view mirrors, the car’s engine having been started and the garage door behind the car having been opened earlier in the morning. Prom this testimony the jury would have been justified in finding that defendant did not know, and should not be held to have foreseen? that the children would be behind [526]*526his car so soon after his having left them in the house. On the other hand, it would have been equally within the jury’s province to have found that defendant should have known that the children could have been dressed and could have run out of the house and into the zone of danger behind the car during the two minutes it usually took the aged defendant to cover the same distance walking slowly and the additional time it must have taken him to enter the car, make his ineffectual observations through his rear- and side-view mirrors, and put the car in backward motion.
The jury should have been allowed to decide that fact issue of foreseeability of harm to the children, Palsgraf v. Long Island R. Co. (1928), 248 NY 339, 345 (162 NE 99, 59 ALR 1253), and it should have been instructed that, if it found that defendant had or should have had such knowledge, the law imposes upon the defendant a duty owed to the children to exercise such care and diligence as a reasonably prudent person in similar circumstances would consider reasonably necessary for the safety of the children. What we say here is nothing more than that it was for the circuit judge to say that, if the jury found that as a matter of fact a reasonably prudent person should have foreseen the presence of the children in the zone of danger, then, as a matter of law the defendant owed to the injured child a duty of due care. If such duty arose, it then would become the jury’s task to determine, as a matter of fact, whether the defendant’s conduct measured up to the duty of care imposed upon him by the law. Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise, When they do, they must be submitted to [527]*527the jury, our traditional finders of fact, for ultimate resolution and they must he accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.
Instead of submitting the foreseeability of risk of harm issue of fact for jury determination, the cir[528]*528cilit judge himself determined that “the defendant was not put on notice that there were any children there at all” and, consequently, he concluded that defendant owed no duty to the children for breach of which he could be held liable in this case of Bonin to the plaintiff.
Had the circuit judge defined for the jury defendant’s legal duty of due care, dependent upon the jury’s finding on the fact issue of defendant’s knowledge of the foreseeable risk of harm to others, there was sufficient evidence in this record to require submission to the jury of the additional fact issue of defendant’s breach of such duty.
Defendant’s view of the area behind his car was narrowly limited, yet he proceeded to back the car out of the garage without sounding his horn or giving other, oral, for example, warning of his intended action. Furthermore, the garage was a two-car garage and the defendant’s car was in the stall farthest from the house. The stall nearest the house was empty and its overhead door was closed. Had defendant opened that door, his view from his-seat in the car of the area from the house to the garage would have been enlarged substantially. The jury would have been entitled to find, although certainly not required to do so, that due care required defendant to take any or all of such cautionary measures before backing his car out of the garage and that his failure to do so constituted actionable negligence.
Reversed and remanded for new trial.. Costs to plaintiff. _
T. M. Kavanagh, C. J., and Dethmers and Adams, JJ. concurred with Souris, J.
Black, J., concurred in result.
Harper and James discuss the functions of judge and jury in such cases this way:
“The jury usually decides what conduct reasonable care would call for in the case before them, and also what was the conduct of the parties. But it is often said that the court decides whether the defendant owed to plaintiff any duty to use due care at all, and in one sense this is true. The court decides whether a manufacturer’s liability is to be limited by privity of contract or extended to the full range of what may be foreseen; or whether likelihood of trespassing raises a duty of care towards the trespasser; or whether the duty to take a specific precaution is eireumseribed by the specific dangers that called for the precaution, or extends to unforeseeable hazards. Yet the general rule has too often been stated without enough critical appraisal. The duty issue, like any other, can be broken down into (a) rules and (b) the application of those rules to the concrete faets of a given case. Here as elsewhere the court lays down the rules. But the application of those rules to particular faets should be, and in fact usually is, committed to the jury on the duty issue as upon any other.
“The duty issue frequently poses questions of the kind usually given to the jury. Under the prevailing rule duty to use due care is bounded by the foreseeable range of danger. Seasonable foreseeability of harm is the very prototype of the question a jury must pass upon in particularizing the standard of conduct in the case before it. It is no harder and not very different to fix upon the foreseeable range of that harm, or to determine whether a given hazard was foreseeably great enough to make particular conduct negligent. If the ease is very clear, of course, a jury verdict may be directed here as upon any other question (as was true in Mrs. Balsgraf’s ease). But here as elsewhere, ‘In doubtful situations a jury must say where the line is to be drawn.’ [Quoting from Cardozo, J., in Bird v. St. Paul F. & M. Ins. Co. (1918), 224 NY 47, 54 (120 NE 86, 88)].” Harper and James, Torts, § 18.8, pp 1058, 1059.
Prosser puts the matter this way:
“The determination of any question of duty — that is, whether the defendant stands in such a relation to the plaintiff that the law will impose upon him any obligation of reasonable conduct for the benefit of the plaintiff [is for the court]. This issue is one of law, and is never for the jury. * * *
“In any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant’s conduct with respect to it, or the normal character of an intervening eause, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way.” Prosser, Torts (3d ed), § 52, pp 329, 330.