Souris, J.
After jury verdict for $51,500 in plaintiff’s favor in this negligence case, the trial judge granted defendant railroad judgment
non obstante veredicto..
We review this judgment on plaintiff’s appeal, as we would a granted motion for directed verdict of no cause, by examining the proofs in the light most favorable to plaintiff to determine whether there were any proofs based upon which a jury properly could return a verdict for plaintiff.
Barnebee
v.
Spence Brothers,
367 Mich 46.
Decision in this appeal has required our consideration of the circumstances in which a jury must be allowed to determine performance or breach of a railroad’s common-law duty of care at grade crossings. The trial judge initially submitted this issue
to the jury which found from the evidence that due care required more from the defendant railroad than its mere maintenance of warning devices required by statute; but the judge subsequently concluded in granting defendant judgment
non obstante veredicto
that,
as a matter of law,
the circumstances disclosed by the evidence did not require of defendant any greater care than mere compliance with statutory requirements. For reasons to be subsequently stated, it is our conclusion that the trial -judg'e was correct initially in submitting the question of defendant’s compliance with its common-law duty of care for factual determination by the jury and that the jury’s finding that defendant had breached such duty was amply supported by the evidence.
Having concluded that the jury’s finding that defendant had breached its duty of due care for the safety of Emerson Emery, plaintiff’s mentally incompetent husband and ward, we were required next to determine whether there was evidence to support the jury’s finding of causal connection between such negligence of defendant and Emery’s injury. The plain fact is that, excepting only for Emery’s own testimony (concerning which more will be said later) there was no eyewitness testimony from which it could be determined directly how the collision occurred. In view of the jury’s verdict for plaintiff, its implicit finding of causal connection could only have been determined by the jury by rejection of at least part of Emery’s own testimony and its favorable consideration of contrary circumstantial evidence, — thus requiring us to determine whether the jury’s finding of causation was based upon permissible inferences from such evidence or upon nothing more than conjecture. We conclude that, taking a favorable-to-plaintiff view of the evidence, the jury was entitled reasonably to infer that defendant’s.
negligence was a cause in fact of plaintiff’s ward’s injuries.
In addition to the foregoing issues we will discuss fully in this opinion, there are 2 other issues we may •dispose of summarily. First, defendant on appeal urges that we find Emery to have been guilty of •contributory negligence as a matter of law. We need not discuss at length our rejection of this contention. The contention is based squarely upon Emery’s testimony that he stopped 15 or 20 feet in front of the defendant’s tracks and, seeing and hearing-nothing to warn him of danger, proceeded to cross the tracks and was struck by what he testified he thought was the defendant’s engine.
Other evidence in the cáse, including- the physical facts of box car damage and absence of any marks of collision on the engine, sharply contradicts this testimony and, at best, makes of the issue of contributory negligence one for jury determination rather than for determination by the trial judge or by us as a matter of law. ' ‘
Second, by cross appeal defendant claims the statute of limitations, CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605),
bars this action and that Emery’s mental incompetence did not toll the running of the limitational period within the meaning of CL 1948, § 609.15 (Stat Ann § 27.607).
There was ample evidence we need not describe from which the jury properly could find, as it evidently did, that
Emery was rendered insane by his injuries and that he remained insane at least until within the 3-year period preceding commencement of this suit. The issue was a factual one dependent upon the jury’s determination that Emery’s mental derangement was such as to “bar the sufferer from comprehending rights he is otherwise bound to know,” as was said in
Valisano
v.
Chicago & N. W. R. Co.,
247 Mich 301, 304. It was so submitted to the jury by instruction which was prepared almost verbatim from defendant’s own requests to charge. Nothing-in this record would compel our reaching a factual conclusion on this issue different from that of the jury and certainly not as a matter of law.
We may turn now to the principal issues involved in this appeal: (1) Was the defendant railroad’s performance or breach of its common-law duty of care a question of fact for jury determination? (2) Was the evidence sufficient to support the jury’s finding of proximate causation?
The collision occurred in the city of Flint on Lippincott road, of gravel surface and 20 feet wide, where it is crossed by the single track main line of the defendant railroad. Emerson Emery, while driving his automobile eastward along Lippincott one dark night in May of 1952, collided with 1 of defendant’s southbound freight trains then crossing the roadway, Emery’s automobile striking the 31st and 32d cars of a 56-car train. The only lights on the train were on the engine, about 1/2 mile south of Lippincott road at the time of the collision, and on the caboose at the rear of the train. The only warning device at the grade crossing was a standard wooden crossbuck sign. Several witnesses testified, from their prior observations and from their experiences on the very night of the collision, that it' was ■ difficult to see trains crossing Lippincott
when cautiously approaching this grade crossing from west to east at night.
Two of the witnesses indicated by their testimony that the placement of an ordinary city street light .just west of the defendant’s tracks, the arc of which ■did not extend far enough to illuminate those tracks, .and the darkness of the area immediately east of the tracks, made it difficult for eastbound motorists to .see trains which were in the process of crossing Lippincott road. One of these witnesses testified as follows:
“Q.
On the night of this occurrence was the street light shining?
“A.
Yes.
“Q.
What can you tell us as to what you saw, the 'effect of the street light?
“A.
How is that?
“Q.
What can you tell us about what you saw of the effect of the street light?
“Mr. Davison:
For what position?
“A.
From driving down—
“Q. {By Mr. Ortlieb):
As you were approaching this crossing.
“A.
Well, as I say, the arc of the light don’t shine -on to the railroad. * * *
“A.
When you come into the light you cannot see through it, when you get to the light, you cannot :see beyond the arc of the light.
“Q.
This was the condition prevailing that night?
“A.
That is right.
“Q.
In other words this light shed an arc down ;on the highway?
“A.
That is right.
“Q.
You say it did not come to the track?
“A.
No.
“Q.
In other words, that shed an arc light, something like this (indicating) ? .
“A.
Yes, similar to that, yes.
“Q.
You say that you could not see through it?
“A.
No, you cannot see through this light at night, unless lights on the other side of it.
“Q.
And what kind of a night was it, that night?
“A.
Well, just an ordinary night, 10 o’clock, around 9:30, 10 o’clock, dark.
“Q.
It was dark?
“A.
Yes.
“Q.
Were there any lights in the background, that is, to the east of the tracks?
“A.
No.
“Q.
It was all black?
“A.
It was all black.”
The foregoing testimony was confirmed by the opinion testimony of an expert witness, an associate professor of physics at the University of Michigan.
It was his testimony that an eastbound motorist’s eyes adjust to the brilliance of the light arc cast by the street lamp, located as it was 140 to 150 feet west of the railroad grade crossing; that as the motorist passes through the arc of light and enters an area of relative darkness, his eyes do not adjust instantaneously to the difference in the levels of illumination; and that until such adjustment occurs his vision is impaired.
There were introduced in evidence records of the State public service commission concerning the railroad grade crossing involved in this case. From those records and from direct testimony it appears that the city of Flint, almost 2 years before Emery’s injuries, had requested the commission to hold hear-Trigs for determining the advisability of installing ■flashing light signals at several grade crossings in the city, including the Chesapeake
&
Ohio Railway’s main-line crossing on Lippincott. During a 6-month period prior to Emery’s collision with defendant’s •train, from June to December of 1951, there were 5 .•accidents at this grade crossing. In each case the motor vehicle was traveling eastward, in the same •direction Emery was traveling before he struck ■defendant’s freight train. In at least 4 of the 5 ■other cases,
as in this case, the collision occurred during darkness. Ten days after the last of the series of 5 accidents, 1 of which was a fatality, representatives of the railroad, the city of Flint and the ■public service commission met at the site of the ■grade crossing where it was agreed that flashing light signals would provide the protection which was obviously needed. On February 8, 1952, about .3 months before Emery’s accident, an order was ■entered by the public service commission reading, in its pertinent parts, as set forth in the margin.
Unfortunately, the commission order did not require-immediate installation of the flashing light signal but provided, instead, that it be installed within 9' months from the date of the order. Emery’s accident occurred before the ordered signal was installed.
Plaintiff’s claims that defendant was negligent in-failing to install promptly the flashing light signal or some other warning device were rejected by the-trial judge in his opinion granting defendant judgment
non obstante veredicto
on the ground, among others, that plaintiff had failed, as a matter of law, to prove any “unusual conditions” requiring the-railroad to provide warnings in addition to the cross-buck sign. Reference was made in the opinion to
McParlan
v.
Grand Trunk W. R. Co.,
273 Mich 527;
Esterline
v.
Kennicott,
277 Mich 130;
Allen
v.
Grand
Trunk W. R. Co.,
334 Mich 104, and
Walsh
v.
Grand Trunk W. R. Co.,
363 Mich 522.
In those cases relied upon by the trial judge, recognition was given to what this Court recently, in
Walsh
v.
Grand Trunk W. R. Co., supra,
called an “exceptional rule.” The rule,
as it is sometimes construed and applied,
is, indeed, so exceptional that railroads have been excused from compliance with the otherwise universally applicable common-law duty of due care, — of ordinary prudence, — the trial judge first having determined
as a matter of law
that there was no “special duty”
(McParlan,
p 534, and
Esterline,
p 133) imposed upon a defendant railroad to maintain “special warning”
(McParlan,
p 535) of danger caused by “special conditions”
(McParlan,
p 534, and
Esterline,
p 133), “unusual conditions”
(Allen,
p 107) or “special circumstances”
(Walsh,
p 524). The true rule has sometimes been thus misconstrued and misapplied. Hence, we shall give more than passing attention to the occasionally difficult application of the rule, rather than to the rule itself. In none of our opinions upholding directed verdicts of no cause or reversing jury verdicts for plaintiffs by our own invocation of this “exceptional rule” has our deviation in grade-crossing cases from the due care standard of the common law been announced but, on the contrary, as in
McParlan,
at p 533, we have asserted our continuing recognition; of its applicability while refusing more often than not to apply it.
In
McParlan
this Court accurately restated our common-law rule that railroads have a duty to maintain such grade-crossing protection to highway travelers, in addition to safeguards required by statute, as ordinary care and prudence demand, pp 533,
534;
however, the correct rule, “exceptional” or otherwise, having been clearly repeated, it seems to us that the Court in the specific circumstances shown
in
McParlan
erred in failing to apply it.
For presently contemporaneous restatement of the same rule, see
Baldinger
v.
Ann Arbor R. Co.,
372 Mich 685. Unfortunately, some of the language of the Court’s opinion in
McParlan
has been understood erroneously to méan, on the contrary, that only in the event of truly extraordinary circumstances of danger or risk does a railroad have any duty to maintain protective devices at grade crossings in addition to those required by statute and that
the trial judge
is oblig’ed to determine the existence of such extraordinary circumstances before submitting to the jury the question of a railroad’s compliance with such duty. That was not the rule in 1935 when
McParlan
was decided, as is evident not only from
McParlan’s
statement of the rule but also from analysis of
Staal
v.
Grand Rapids & Ind. R. Co.,
57 Mich 239;
Guggenheim
v.
Lake Shore & M. S. R. Co.,
66 Mich 150;
Freeman
v.
Duluth S. S. & A. R. Co.,
74 Mich 86 (3 LRA 594); and
Barnum
v.
Grand Trunk W. R. Co.,
148 Mich 370, upon all of which the Court’s opinion in
McParlan
expressly relied.
Barnum
v.
Grand Trunk W. R. Co.
is in point. There, the Court approved a challenged jury instruction (quoted from the opinion in the margin
) that
squarely put upon the defendant railroad,.in classically simple language replete with helpful references to the evidence, the common-law duty of due care. The same is true of
Guggenheim
v.
Lake Shore & M. S. R. Co.
where this Court, in approving a trial judge’s jury instruction, discussed the defendant railroad’s duty in the following terms (pp 158, 159) :
“The court instructed the jury, in these respects, that in running its trains over the crossings of public highways it is the duty of the railroad company—
“ ‘To exercise a degree of care and prudence commensurate with the danger and peril to which persons, who are seeking with due care and caution to cross the track, are liable to be exposed by its trains, so that they may have a reasonable opportunity, by the exercise of due care and prudence on their part, to save themselves from injury; — ’
“And that if at the time of Manheimer’s death the crossing was a dangerous one, and if, as he approached the track, his view was cut off or obstructed in a measure by intervening buildings and freight cars, so as to interfere with his seeing its approach or knowing of it until it was dangerously near, it was the duty of the defendant to give due and timely warning of the approaching danger, either by bell,
whistle, or both, or by some other means, and in snch a way as to give him an opportunity, by due diligence and care, to meet and guard against such danger; and that the absence of any statute requiring it would not, under such circumstances, relieve the railroad company from giving due and timely warning, by whistle or otherwise, of the approach and passage of its trains over a dangerous crossing of a public street; and that while there was, at the time of the accident, no statute limiting the speed of the train over this crossing, yet the speed of such train must nevertheless be consistent with the degree of care and prudence required in good railroad management, and that such crossing must be approached and passed over with the care and prudence commensurate with the rate of speed attained, and the train managed and controlled with that degree of care and prudence required for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing.
“It needs no argument to demonstrate that the court was right in these propositions. It would be a queer doctrine to establish that a railroad company could do what it pleased with its train in running over a crossing like this, unless interdicted by some statute, without any regard to that common care and prudence that the law requires from all to protect the lives and property of others.” 66 Mich 150, 158, 159.
Subsequently, (pp 160-163) in
Guggenheim,
it is true that this Court did speak of the railroad’s duty to take “extra precaution” by giving “additional warnings” of “increased danger” caused by the railroad’s leaving freight cars standing on a side track in such a way as to obstruct an approaching traveler’s view and by its running its trains behind schedule. However, the jury charge it approved which related to these matters told the jury nothing more than that •defendant was obliged to exercise increased diligence
and care commensurate with, the increased dangers created by defendant’s operation of its trains. Significantly, this Court did
not
refer to the standing freight cars or the operation of behind-schedule trains as “special conditions” absent which the trial court would not have been justified in submitting the issue of defendant’s negligence to the jury.
Guggenheim,
simply approved a jury charge which left for jury determination defendant’s compliance with the common-law duty of due care commensurate with all of the circumstances.
In
Freeman
v.
Duluth S. S. & A. R.
Co., 74 Mich 86, the plaintiff claimed the defendant railroad was negligent in failing to put a flagman at a grade crossing obstructed from the view of highway travelers. Although reversing a jury verdict for plaintiff, on the ground of contributory negligence, this Court approved a jury instruction imposing upon the railroad the common-law standard of duty which requires due jury regard of
all
the circumstances of the crossing. This Court spoke critically of that instruction in only 1 particular, — where it charged that in order to find that the railroad was required to place a flagman at the crossing the jury had to find:
“that the danger at the crossing was altogether exceptional, — that there was something about the case rendering ordinary care on the part of the witness Grant (the driver of the horse and carriage) an insufficient protection against injury, and therefore made the assumption of the burden of a flagman on the part of the railroad company a matter of common duty for the safety of people crossing.” 74 Mich 91, 92.
That portion of the charge, said this Court at p 92, was too favorable to the appellant railroad
“in that it connected the necessity of keeping a flagman at this crossing with the nse of ordinary care on the part of Grant. The. duty of maintaining a flagman at this point did not depend on the question whether Grant, in .this particular instance, could by common prudence have avoided this collision or not. It depended rather upon the situation of the crossing, its relation to the travel upon the street generally, and the facilities afforded, not only the travelers on the street, but the trainmen on the cars, to avoid collisions and accidents of this kind, without a flag’man to give warning of approaching trains.”
It is significant that the Court in
Freeman
rejected reference to circumstances creating an excéptional danger before the railroad could be found by a jury to be duty-bound to provide a flagman, while reiterating that the existence of the duty must be determined from
all
of the circumstances and 'the commensurate requirements of common prudence.
Finally we come to
Staal
v.
Grand Rapids & I. R. Co., 57
Mich 239, sometimes also mistakenly relied upon for the proposition that “special conditions” must exist before railroads may be required at common law to maintain protective devices in addition to those required by statute. Nothing in this Court’s opinion in
Staal
supports that proposition. Indeed, the Court’s opinion, written by Mr. Justice Campbell, succinctly states the common law of this State with reference to the obligation of railroads to provide protective devices at grade crossings above and beyond those expressly required by statute. This statement of the railroad’s common-law duty is cast in the usual terms of ordinary care and prudence
determined from
all
of the circumstances, not just those which may he described judicially as constituting “special conditions,” “unusual conditions,” or “special circumstances.” That portion of Judge Campbell’s opinion in
Staal
bears repeating in the hope that its pointed repetition will help return this Court to the sounder precepts of an earlier day:
“The principal grievance, however, was, as claimed, the absence of any local warning. The duty of having gates or flagmen at a street crossing is not imposed absolutely at all city street crossings. But it cannot be held that circumstances may. not impose a duty to do this or something which, will be of service to passers-by. Under the charter of Brand Rapids it appears that the common council passed resolutions requiring the marshal to notify the proper officers of railroads to station flagmen at street crossings, and that this notice reached the defendant. The court below did not recognize this as imposing any legal duty, and we need not now consider how far it did so. But the jury were told that while there was no absolute duty laid on them by law, it was for them to decide whether ordinary care and prudence required some such precaution under the circumstances. In this we think there was no error.
“This was not a mere single crossing where the only danger was from cars running in 1 direction at a time, on a single and clear track, plainly visible. Within a small range 3 separate companies had tracks crossing this highway, and 1 of those companies had 3 tracks within 40 feet of defendant’s. The immediate cause why the view was more or less obscured was the passing and repassing of a Michigan Central train between Staal and defendant’s train, and the standing of cars upon a track near by. Defendant could not control the movements of other companies, and could not be controlled by them. This proximity made the running of all these cars, especially in opposite directions, more dangerous, as likely
not only to cut off view, but also to confuse the sound of passing trains. It cannot be said that companies that obstruct the ordinary travel on city streets may not be bound to make that obstruction as little dangerous as they reasonably can; and if from local surroundings such precautions as are sufficient generally are not sufficient there, it is open to inquiry how far they are culpable for mischief that can be traced to such neglect. We think the jury had enough before them to warrant them in considering these surroundings so dangerous as to call for some efficient local warning to passers-by.” 57 Mich 243, 244.
McParlan, Staal, Guggenheim, Freeman,
and
Barnum
should no longer be misconstrued as the sources of a truly exceptional and equally erroneous rule (nor should those cases be misapplied to reach a result) by which railroads are relieved of their common-law obligation to maintain such grade crossing safeguards as ordinary prudence requires upon judicial determination of the absence of “special circumstances.” The decisions discussed above were true to the common law in recognizing that responsibility for determination of that which ordinary prudence requires is placed squarely and exclusively in our system of justice upon the jury and it is not a responsibility subject to a judge’s determination of the presence of a factual condition precedent. Only in
McParlan
did the Court fail to apply that rule, while at the same time acknowledging its existence.
Turning now to this case of Emery and viewing it in the light of
Staal’s, Guggenheim’s, Freeman’s, Barnum’s
and
McParlan’s
recognition of the common-law duty of ordinary care and prudence commensurate with
all
the circumstances, — relieved of the analysis-crippling semantics of “special conditions” and the.like, — there can be no doubt that the
trial judge properly submitted for jury determination the question whether the physical circumstances existing at the grade crossing involved in this case required defendant railroad in the exercise of ordinary care and prudence commensurate with such circumstances to provide warning devices in addition to the ordinary wooden crossbuck sign.
The evidence of limited visibility at this grade crossing on the very night of Emery’s collision with defendant’s train from witnesses who preceded and followed him across that grade and their own graphic description of the artificially created lighting conditions there prevailing were the circumstances for jury consideration in determining whether the black and white crossbuck satisfied the common law’s requirement of ordinary care and prudence. That at least 4 other nighttime eastbound drivers also collided with defendant’s trains in such a short span of time preceding Emery’s collision, would justify a jury conclusion that defendant railroad should have realized (as apparently it did), at least by the date of the public service commission’s order, that additional warning signals were required.
Freed
v.
Simon,
370 Mich 473, and 70 ALR2d 167. This issue was properly submitted to the jury by the trial judge and the jury’s decision finds ample support in the evidentiary record. However, in subsequently setting aside that verdict at the time of his consideration of defendant’s motion for judgment
non obstante veredicto,
the trial judge erred in his conclusion that, absent proof of “unusual conditions” at this crossing, as a matter of law defendant was under no obligation to maintain additional warning devices.
We have previously observed that the jury must have rejected at least some of Emery’s testimony concerning the manner in which his collision with defendant’s train occurred. There was no other direct evidence from which the jury could determine
how the accident' happened except by consideration of circumstantial evidence. At this point in its deliberations, having found defendant to have been negligent in failing to provide adequate warning of danger, the jury’s task was to determine whether there was' a causal connection between defendant railroad’s negligence and the collision between Emery’s car and defendant’s train. The evidence of limited visibility at this grade crossing on the very night of the collision; the testimony concerning the nearby street light’s adverse effect upon the visibility to eastbound motorists of trains crossing Lippincott road, which testimony was amply corroborated by the expert witness’ opinion testimony; and the remarkable record of 4 or 5 other previous nighttime collisions between defendant’s trains and eastbound motorists in a 6-month period at this very crossing, presents an evidentiary record ample to support a jury’s reasonable inference that Emery collided with defendant’s freight train because he could not see it and was not warned otherwise of its presence in time to avoid it.
That was the only evidence in this ease relevant to the issue of causation. It supports only 1 inference, — that defendant’s negligence in failing to provide adequate warning of danger caused Emery’s collision with defendant’s train.- No other inference can be drawn reasonably from that evidence and any other inference, therefore, would lack any support in this record, there being no other evidence, direct or circumstantial, from which the jury could infer that the collision occurred as the result of any other cause in fact.
Unlike
Walsh
v.
Grand Trunk W. R. Co.,
363 Mich 522, there was legally sufficient evidentiary support in this record for the inference of causation the jury necessarily drew in rendering its verdict for plaintiff. It is for the court to say, as the trial
'court did initially and as we do now, taking a favorable-to-plaintiff view of the evidence, of course, that the evidence is legally sufficient to support an inference of causation necessary to make defendant’s negligence actionable. The ultimate decision, whether such cause
ought
to be inferred, like all other fact questions, is for the jury. See Lord Cairns’ statement of this principle from
Metropolitan Ry. Co.
v.
Jackson,
3 LR App Cases, 193, 197 (47 LJQB NS 303, 305, 37 LT 679), as quoted in
Carver
v.
Detroit & Saline Plank Road Co.,
61 Mich 584, 592.
See, also,
Parker
v.
Union Station Ass’n,
155 Mich 72, 76, 77, and
Indiana Lumbermens Mutual Ins. Co.
v.
Matthew Stores, Inc.,
349 Mich 441, at 449-452 (from concurring opinion). The jury was not compelled to choose between one theory of causation and another, neither of which was supported by any evidence, in which event its decision would become an exereise in conjecture, as was the situation in the
Walsh Case;
nor, in this ease, was it compelled to choose between 2 or more theories of causation all of which had some evidentiary support. It could only properly find as it did, that defendant’s negligence was the cause of Emery’s collision, or that it was not persuaded by the circumstantial evidence received that defendant’s negligence was the cause. See
Kaminski
v.
Grand Trunk W. R. Co.,
347 Mich 417, particularly 425-428, and
Goldberg
v.
Koppy Tool & Die Co.,
365 Mich 469, 472. What was said in
Schoepper
v.
Hancock Chemical Co.,
113 Mich 582, at 586, is squarely in point:
“Defendant’s counsel contend that the cause of this explosion is a matter of mere conjecture, and it is
said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we take to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof.
Robinson
v.
Charles Wright & Co.,
94 Mich 283;
Redmond
v.
Delta Lumber Co.,
96 Mich 545. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other. In this case there was no direct proof of any other probable producing cause of the explosion than such as was offered by the plaintiff.”
Having concluded that the evidentiary record was legally sufficient to support the jury’s verdict for plaintiff — that the jury properly could find that defendant was actionably negligent — we conclude that it was error for the trial court to set aside such verdict in granting defendant’s motion for judgment
non obstante veredicto.
Reversed and remanded for entry of judgment on the jury’s verdict. Costs to plaintiff.
Kavanagh, C. J., and Dethmers, Black, Smith, and O’Hara, JJ., concurred with Souris, J.
Kelly, J., concurred in result.
Adams, J., took no part in the decision of this case.