Holbrook, J.
This cause of action results from injuries sustained by plaintiffs’ minor son when he dove from a board attached to a tree and struck his head on the bottom of a gravel pit. The pond is located in Genesee County and owned by defendant Irene C. Earle. The area has been under lease since February 1963, to defendants Harvéy C. Mathews, Benjamin F. Mathews, Harry E. Mathews, and Earl L. Mathews, doing business as Mathews Gravel Company. Earl L. Mathews is now deceased.
The mishap took place on September 19, 1965, when Delmar Taylor, then 15 years of age, accompanied by three companions, went to the abandoned pit to swim. The pond had not been used for its intended purpose of a gravel pit for a number of years but was frequently used as a recreational swimming place for more than 25 years.
On September 18, 1968, suit was started in the Circuit Court for Genesee County charging the defendants with negligence. On May 20, 1970, defendants moved for summary judgment contending plaintiffs failed to state a cause of action. The motion was founded upon MCLA 300.201; MSA 13.1485, which is set out below:
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, [78]*78sightseeing or other similar outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner; tenant or lessee. ” (Emphasis supplied.)
The trial court reserved its decision and allowed plaintiffs 30 days to file an amended complaint. Plaintiffs amended by adding Count II to their complaint which alleged gross negligence and wilful and wanton misconduct by defendants which caused injuries to Delmar Taylor.
The main allegations of Count II1 of plaintiffs’ [79]*79amended complaint were (1) that defendants maintained a gravel pit which contained water on a particular portion of the property; that the level of the water of the gravel pit varied during different periods of the year; that the gravel pit was used by youngsters and others to swim in; that there was a diving board placed on a tree which extended over the water, which was used by the youngsters to [80]*80dive from; that the maintenance of the gravel pit and the permitting of the diving board to remain in place and to be used constituted a dangerous condition which required the use of ordinary care and diligence to avoid an injury to one of the youngsters using the same; and further that all of these facts were known to the defendants; (2) that defendants were capable of averting the injury to the plaintiff by ordinary care in using the means available to them; and (3) that defendants’ failure to use such care resulted in the injury to the plaintiff and that defendants were aware of such possible injury.
In considering the motion for summary judgment, the trial court had before it the pleadings, answers to interrogatories, and depositions of three of the named defendants, together with six depositions of witnesses including the plaintiff Delmar Taylor.
Upon renewal of defendants’ motion, the trial court rendered an opinion striking Count I of the amended complaint and granted summary judgment (miscalled an accelerated judgment) for the defendants on Count II of the amended complaint. From that ruling, and the court’s refusal to grant a rehearing, plaintiffs appeal.
Plaintiffs raise the following issue on appeal to this Court:
Have the plaintiffs set forth sufficient facts to state a cause of action in their amended complaint?
As to Count I of plaintiffs’ complaint charging defendants with ordinary negligence, the trial court’s dismissal in favor of defendants is upheld because plaintiffs admit there was no consideration paid by plaintiffs to defendants for the recreational use of defendants’ premises, MCLA 300.201; [81]*81MSA 13.1485, and because our Supreme Court has ruled in the case of Heider v Michigan Sugar Company, 375 Mich 490 (1965), that the statute is applicable to minors.
We now come to the vital question of whether Count II of plaintiffs’ complaint when considered with the depositions and answers to interrogatories previously mentioned, presents sufficient grounds to entitle plaintiffs to a jury trial on plaintiffs’ claim that defendants were guilty of gross negligence or wilful and wanton misconduct.
2 Restatement Torts, 2d, § 339, p 197 provides:
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”
One of the opinions for reversal of Genesee Merchants Bank & Trust Company v Payne, 381 Mich 234, 242-243 (1968), states as follows:
"Since original section 339 was adopted and promul[82]*82gated by the American Law Institute that section has been broadened beyond 'young’ children. 2 Restatement Torts (Second), Appendix (1966), advises under § 339 at p 129:
" 'This section has been changed from the first Restatement in the following respects:
" T. By eliminating the limitation to "young” children. There seems now to be general agreement that the age of the child is important only as it bears on whether he does, and can be expected to, realize the risk. There are now a considerable number of decisions in which the rule stated has been applied to children over the age of 13 years:’ (Here follow some four pages of recent citations).”
Among these citations appear the following:
"17 years * * *
"The question was considered at length in Hoff v Natural Refining Products Co., 38 NJ Super 222; 118 A2d 714 (1955), with the conclusion that the question is not whether the child is to be classified as 'young,’ but whether he is, and may be expected to be, too young to appreciate the risk; there is no fixed age limit.”
The statute MCLA 300.201; MSA 13.1485 permits plaintiffs to recover in this action provided defendants are guilty of gross negligence or wilful and wanton misconduct.
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Holbrook, J.
This cause of action results from injuries sustained by plaintiffs’ minor son when he dove from a board attached to a tree and struck his head on the bottom of a gravel pit. The pond is located in Genesee County and owned by defendant Irene C. Earle. The area has been under lease since February 1963, to defendants Harvéy C. Mathews, Benjamin F. Mathews, Harry E. Mathews, and Earl L. Mathews, doing business as Mathews Gravel Company. Earl L. Mathews is now deceased.
The mishap took place on September 19, 1965, when Delmar Taylor, then 15 years of age, accompanied by three companions, went to the abandoned pit to swim. The pond had not been used for its intended purpose of a gravel pit for a number of years but was frequently used as a recreational swimming place for more than 25 years.
On September 18, 1968, suit was started in the Circuit Court for Genesee County charging the defendants with negligence. On May 20, 1970, defendants moved for summary judgment contending plaintiffs failed to state a cause of action. The motion was founded upon MCLA 300.201; MSA 13.1485, which is set out below:
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, [78]*78sightseeing or other similar outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner; tenant or lessee. ” (Emphasis supplied.)
The trial court reserved its decision and allowed plaintiffs 30 days to file an amended complaint. Plaintiffs amended by adding Count II to their complaint which alleged gross negligence and wilful and wanton misconduct by defendants which caused injuries to Delmar Taylor.
The main allegations of Count II1 of plaintiffs’ [79]*79amended complaint were (1) that defendants maintained a gravel pit which contained water on a particular portion of the property; that the level of the water of the gravel pit varied during different periods of the year; that the gravel pit was used by youngsters and others to swim in; that there was a diving board placed on a tree which extended over the water, which was used by the youngsters to [80]*80dive from; that the maintenance of the gravel pit and the permitting of the diving board to remain in place and to be used constituted a dangerous condition which required the use of ordinary care and diligence to avoid an injury to one of the youngsters using the same; and further that all of these facts were known to the defendants; (2) that defendants were capable of averting the injury to the plaintiff by ordinary care in using the means available to them; and (3) that defendants’ failure to use such care resulted in the injury to the plaintiff and that defendants were aware of such possible injury.
In considering the motion for summary judgment, the trial court had before it the pleadings, answers to interrogatories, and depositions of three of the named defendants, together with six depositions of witnesses including the plaintiff Delmar Taylor.
Upon renewal of defendants’ motion, the trial court rendered an opinion striking Count I of the amended complaint and granted summary judgment (miscalled an accelerated judgment) for the defendants on Count II of the amended complaint. From that ruling, and the court’s refusal to grant a rehearing, plaintiffs appeal.
Plaintiffs raise the following issue on appeal to this Court:
Have the plaintiffs set forth sufficient facts to state a cause of action in their amended complaint?
As to Count I of plaintiffs’ complaint charging defendants with ordinary negligence, the trial court’s dismissal in favor of defendants is upheld because plaintiffs admit there was no consideration paid by plaintiffs to defendants for the recreational use of defendants’ premises, MCLA 300.201; [81]*81MSA 13.1485, and because our Supreme Court has ruled in the case of Heider v Michigan Sugar Company, 375 Mich 490 (1965), that the statute is applicable to minors.
We now come to the vital question of whether Count II of plaintiffs’ complaint when considered with the depositions and answers to interrogatories previously mentioned, presents sufficient grounds to entitle plaintiffs to a jury trial on plaintiffs’ claim that defendants were guilty of gross negligence or wilful and wanton misconduct.
2 Restatement Torts, 2d, § 339, p 197 provides:
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”
One of the opinions for reversal of Genesee Merchants Bank & Trust Company v Payne, 381 Mich 234, 242-243 (1968), states as follows:
"Since original section 339 was adopted and promul[82]*82gated by the American Law Institute that section has been broadened beyond 'young’ children. 2 Restatement Torts (Second), Appendix (1966), advises under § 339 at p 129:
" 'This section has been changed from the first Restatement in the following respects:
" T. By eliminating the limitation to "young” children. There seems now to be general agreement that the age of the child is important only as it bears on whether he does, and can be expected to, realize the risk. There are now a considerable number of decisions in which the rule stated has been applied to children over the age of 13 years:’ (Here follow some four pages of recent citations).”
Among these citations appear the following:
"17 years * * *
"The question was considered at length in Hoff v Natural Refining Products Co., 38 NJ Super 222; 118 A2d 714 (1955), with the conclusion that the question is not whether the child is to be classified as 'young,’ but whether he is, and may be expected to be, too young to appreciate the risk; there is no fixed age limit.”
The statute MCLA 300.201; MSA 13.1485 permits plaintiffs to recover in this action provided defendants are guilty of gross negligence or wilful and wanton misconduct.
Gross negligence or wilful and wanton misconduct has been defined to exist when the following conditions are present:
"The elements necessary to characterize the injury in the case at bar as wantonly or wilfully inflicted are:
" '(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to [83]*83prove disastrous to another.’ ” Willett v Smith, 260 Mich 101, 104 (1932); McLone v Bean, 263 Mich 113, 115 (1933); Gibbard v Cursan, 225 Mich 311, 322 (1923).
Defendants assert that plaintiffs have failed to state in their pleadings or establish under the answers to the interrogatories and depositions sufficient facts to raise a valid question of gross negligence.
Summary judgment herein was granted by the trial court as to Count II of plaintiffs’ complaint under GCR 1963, 117.2. In 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 360, 362, it is stated under authors’ comments:
"In negligence cases, even though there may be no dispute as to the quantitative or physical facts, summary judgment will almost always be inappropriate because the qualitative issue of whether defendant exercised reasonable care will be in dispute and must be left for the jury, unless on the undisputed physical facts a judge would say that a directed verdict would be required—which is to say that there really is no negligence issue for the jury. In such cases summary judgment has been allowed in negligence cases and should be. See 3 Barron & Holtzoff, Federal Practice and Procedure, § 1232.1 [p 106].
"It has been said that the test is the same as that used in deciding whether to grant a directed verdict or judgment notwithstanding the verdict. See 3 Barron & Holtzoff, Federal Practice and Procedure, § 1234 at p 133 (numerous cases cited at note 75). If the record as a whole is such that reasonable minds could not differ, there is no issue and summary judgment should be granted. The idea is useful, but it must be applied with appreciation for the fact that the motion for summary judgment is made at a time when there is no evidence, so to speak, and before the record has been made. The motion for summary judgment has to be decided on the basis of verified forecasts of what the evidence will be.
[84]*84"This does not mean that the slightest doubt or possibility of conflict in the evidence makes summary judgment improper. Rather it enjoins caution. And the test more carefully stated would be whether the kind of record which might be developed, within the limits indicated by the pleadings and the affidavits or other material supporting and opposing the motion for summary judgment, interpreted to give the benefit of any reasonable doubt to the opposing party, would leave an issue upon which reasonable minds might differ or upon which a directed verdict would be proper.”
In reviewing the pleadings, answers to interrogatories, and the depositions, we acknowledge that the facts as claimed by plaintiffs and defendants in certain particulars are in dispute. We relate here what appears to us to be some of the pertinent facts:
Harry Mathews, one of the defendants, stated in his deposition that he considered all gravel pits to be dangerous. Harvey Mathews stated in his deposition that they had hired a watchman for the premises to protect the machinery and equipment, but he was not told to keep persons away from the gravel pit swimming area. Two of the defendants stated that they had known of a drowning or drownings at the gravel pit in the past. Further, the defendants stated that they knew that the level of the water in the gravel pit was lower in late summer than in June or July. They attributed this fact to the dry summers, to evaporation, and the level lowering in the Flint River which affected the level of water in the gravel pit. The defendants assert in their depositions that they posted the property with no-trespassing signs, erected fences around the property, and put cables across the entrance to the gravel pit. However, the depositions of the five boys and girls who frequented the gravel pit for swimming and diving in [85]*85June and July of 1964 and the summer of 1965, when plaintiff Delmar Taylor used the gravel pit, stated that they saw no signs or fences present and no cables barring entrance to the property. They further stated that sheriffs deputies visited the gravel pit often and they were never told by the officers that they were not to dive in or swim there. Nor did any of the defendants, their employees or agents who were, during this period of time, working at a gravel pit nearby and using the road that the plaintiff and others used to get to the subject gravel pit, ever tell any of the boys or girls that were deposed that they were not to use the gravel pit. All during this period of time the diving board remained in its usual position according to the depositions of the youths and was not removed.
The deposition of Harry Mathews, one of the defendants, shows in part as follows:
"Q. Going back to when you first took over that property, did you ever have occasion to go on the property?
"A. Yes.
"Q. For what purpose would you go over there?
"A. Walk around it.
“Q. What would be your purpose for walking around it?
"A. Well, if maybe some day we would need gravel, I would look for gravel.
”Q. Did you ever see other people on that property?
"A. Yes.
”Q. They weren’t associated with the company?
'A. They weren’t associated.
"Q. On how many occasions?
"A. A number of occasions.
"Q. All summer long, every summer didn’t you?
’A. Yes.
”Q. What would these people be doing there?
[86]*86"A. Swimming, parking.
”Q. Picnicking and what not?
'A. Yes.
"Q. Did you ever see families there with children?
"A. No, I don’t recall.
”Q. Any adults?
'A. Yes.
”Q. Teenagers?
'A. Kids, yes.”
The deposition of Harvey Mathews, one of the defendants, states in part:
"Q. Now prior to 1965, had you had occasion to be on the premises of that particular gravel site?
’A. Where the accident was?
"Q. Yes.
'A. I been on there several times.
”Q. What would be the purpose of your going on there prior to September 1965, to be more specific, what did you go there for?
"A. I go by there everyday, to go home for dinner.
”Q. Well did you see any activities going on there?
”A. Yes.
”Q. What type of activities?
"A. People swimming, this and that.
"Q. Picnicking?
"A. I wouldn’t say they were or not.
"Q. Were there families there, youngsters and parents?
”A. I didn’t notice any.
"Q. Teenagers?
”A. I suppose there were some, I don’t know.
”Q. There were people but you can’t identify their age group or anything?
”A. No.
”Q. Was that generally used during the summer for that purpose?
”A. They swam in the summertime.
[87]*87”Q. And how long did that practice go on that you know of?
"A. Probably 30 years.
”Q. Did you ever go there on a Sunday in the summer?
’A. Yes.
"Q. Did you ever see cars lined up by Stanley Road?
'A. Yes.
"Q. How would people get over to the gravel pit? Would they walk over?
'A. There is gravel pit on both sides.
”Q. Did you ever see any diving boards around the area?
"A. Yes, I seen a diving board there.
"Q. How long * * * when is the first time you saw that diving board?
”A. I don’t know, a long time ago.
”Q. Was it the first time you first leased the property?
’A. I think they had the diving board there when we moved over there.
“Q. That would be 1963?
’A. Somewhere around there.
”Q. When is the last time you saw the diving board there?
"A. I don’t know. (
"Q. Do you know how it got there?
'A. Probably kids.”
In the deposition of Benjamin Mathews, one of the defendants, it is stated in part as follows:
”Q. Were you aware prior to 1965 of people using the gravel pit area south of Stanley Road that you had the license to?
’A. Yes.
"Q. All right. And for what purpose was it being used?
’A. They was in there swimming.
[88]*88”Q. When is the first time you recall anybody being there swimming?
"A. Way back.
"Q. Back when?
"A. Well, far as I can remember.
"Q. How long—would that go back prior to 1963?
"A. Yes, it would go way back before that.
"Q. Based on your own knowledge, how long was it used as a swimming area?
'A. The best of my knowledge, it would be at least 20 years or longer.
"Q. Okay. During the time you would be in the office prior to 1965, did you see people on your way to work or on your way home from work or going about the yards see people in the gravel pit area south of Stanley Road?
"A. Going home from work I would see them there swimming.
“Q. Did you ever do anything to stop them from swimming?
"A. No.
”Q. Did you ever complain to the police?
"A. I think my brother did.
”Q. Did you?
"A. No.”
The other witnesses, Cheryl Wadsworth, Pamela M. Heit, Grant A. Walter, Karen K. Patterson, and Kenneth L. Heit, whose depositions were taken by the defendants, testified that children of all ages frequented the area in the summer and swam in the gravel pit; that they would wave to the defendants’ employees who were operating equipment and trucks back and forth on Stanley Road and that, in fact, on some occasions defendants’ employees would stop and have their lunch in the area and watch the children swimming; [89]*89that they waved to the employees of defendants regularly when they were in the area and it is obvious that defendants’ employees knew the area was being used by children.
In order to dispose of the issue presented, it is necessary for us to interpret MCLA 300.201; MSA 13.1485. This statute was originally enacted by 1953 PA 201 and amended in 1964 to extend the non-liability provisions against claims of one gratuitously entering land for the purpose of "camping, hiking, sightseeing or other similar outdoor recreational use”. 1964 PA 199, § 1.
Since its enactment, there have been only two reported cases dealing with the statute. In Heider v Michigan Sugar Company, supra, the Court ruled five to three in favor of the defendant landowner. There were three opinions with no opinion receiving more than three signatures of the Justices. In Heider there was no claim of gross negligence or wilful and wanton misconduct and the terms were not defined. See Gross Negligence in Michigan—How Gross Is It?, 16 Wayne L Rev 457, 472 (1970).
The other case, Magerowski v Standard Oil Company, 274 F Supp 246-248 (WD Mich, 1967), was a wrongful-death action to recover for the death of a nine-year-old boy who drowned while fishing from defendant’s dock without permission. Defendant made a motion to dismiss plaintiffs count of gross negligence. The court therein defined gross negligence or wilful and wanton misconduct as defined in Willett v Smith, supra and cited 2 Restatement Torts, 2d, § 339, hereinbefore referred to. The court then ruling on the defendant’s motion to dismiss plaintiffs count of gross negligence stated as follows:
"[2] A landowner in Michigan is not per se immune [90]*90from liability to a child injured by an open and natural condition.
"In Lyshak v City of Detroit, 351 Mich 230 (1958), Justice Talbot Smith in a landmark opinion, set forth the general principles which Michigan courts must follow in analyzing the rights and duties of landowners to trespassing children. Although not specifically deciding the issue, Justice Smith indicated quite strongly that a distinction 'between the mere condition of premises (a child falls into a natural pond) and a dangerous condition on the premises caused by the active intervention, the affirmative acts of the owner (the child is carelessly run down by the owner’s horse and buggy)’ is a fiction which should not be indulged in, since after frequent repetition courts begin to believe them, and thus employing them, reach inequitable results. 351 Mich at 244.
"He stated the real basis of liability of a landowner to a trespassing child as follows:
" 'The community has an interest in the life of a child. The preservation of that life is a proper factor to be weighed against a landowner’s right to the exclusive possession of his land and the use he makes of it. Conduct which unreasonably jeopardizes that life is offensive to our society and the fact that the child is a trespasser is only one of the elements to be weighed by the jury in its historic scales.’ 351 Mich at 244-245.
"Justice Smith recognized that an arbitrary rule such as the one defendant advocates is much like a mousetrap, easy to get into but hard to get out of.
"In Trespassing Children, 47 Calif L Rev 427, at 458 (1959), after observing that many courts have attempted to establish certain definite categories of conditions which trespassing children, as a matter of law, can be expected to understand, such as the danger of drowning in water, Prosser concluded:
" 'The soundness of such arbitrary rules as to what children may always be expected to comprehend may be open to question. The impressive number of cases of dead children, attesting their failure in fact to appreciate these risks, is sufficient in itself to cast some doubt on the validity of the assumption.’
[91]*91"Defendant contends that even if it owed a duty to plaintiff’s decedent, its breach does not constitute gross negligence.
"[3] Gross negligence has been defined to exist when the following conditions are present: '(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Willett v Smith, 260 Mich 101 [1932]; McLone v Bean, 263 Mich 113, 115 (1933); Tien v Barkel, 351 Mich 276 (1958); Slocum v Pennsylvania RR Co (CA No 4670, WD Mich, Sept. 9, 1966); Brinks v C & O R Co [398 F2d 889 (CA6, 1968)].
"[4] There is sufficient evidence in the record to establish defendant knew children used its premises and in the exercise of ordinary care could have prevented them from using its facilities. Plaintiff is entitled to have this issue submitted to a jury.”
We determine that in view of the fact that 2 Restatement Torts, 2d, § 339, has been revised to eliminate the limitation to "young children”, it is now generally accepted that the age of the child is important only as it bears on whether he does, and can be expected to, realize the risk.
There are tort cases from other jurisdictions that allow recovery for injuries to trespassing children up to 16 years of age.2 We are constrained [92]*92to rule, absent a presentation of undisputed facts, that there is no fixed age at which a child does and can be expected to realize any particular risk, as a matter of law.3 We believe the best rule is to judge each case upon its own merits and in the instant case until the plaintiffs have been given the opportunity to present their case, a proper result cannot be assured.
We are constrained to rule that a trial record might well be developed under the pleadings, depositions, and answers to interrogatories showing (1) that defendants knew children were continually intruding upon the limited area of land belonging to defendants, i.e., the gravel pit, for the purposes of diving and swimming in; that the gravel pit condition was dangerous; that the use of the diving board was dangerous; that it was allowed to remain at the gravel pit and that the defendants knew or should have known that it was being used by the children; that the level of the water in the gravel pit was lower in September when the occurrence took place than in the early summer; (2) that defendants had the ability to avoid resulting harm by complaining to the sheriff whose officers patrolled the area; by removing the diving board and by taking means to prevent its being placed there again; by fencing the area and by instructing [93]*93their watchman to deny the children access to the limited area in question; and (3) that the defendants omitted to use such care and diligence to avert the threatened danger to the children (using the gravel pit to dive into), when considering all the facts, it would seem to the ordinary mind it must have been apparent that the result was likely to prove disastrous to another.
The Supreme Court has indicated that negligence and gross negligence, being questions of fact rather than law, are best left to the determination of the jury, Ingram v Henry, 373 Mich 453, 457 (1964), particularly in the doubtful case, Tien v Barkel, 351 Mich 276, 283 (1958), from which we take and apply this passage:
"What negligence case—ordinary or gross—is doubtful and what such case is not will always burden and perplex lawyers and judges. This is so since the controversy turns not upon applicable rules of law but upon their application to the facts. True, it will be said—just as it was when Carver’s opinion [61 Mich 584 (1886)] arrived threescore and 10 years ago—that this rule addressed to 'cases of doubt’ is in itself one of doubt and that it leaves the boundary between jury verdict and commanded verdict in an approximate state of uncertainty. We agree, yet deplore not. The complaint is inherent in negligence law and supplies the underlying reason for respective functions of judge and jury in negligence cases. We shall never attain that certainty of a 'slot for every case’ precisianists demand, and judges will not aid the cause of truth by acting or speaking otherwise.”
We determine that at this point in the proceedings, the issues presented under Count II of plaintiffs’ amended complaint are issues of fact which permit plaintiffs to present their proofs in the case on the merits. Beardsley v R. J. Manning Company, 2 Mich App 172 (1966); Durant v Stahlin, [94]*94374 Mich 82 (1964); Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223 (1963); Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 124 (1868).
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion. Costs to abide final result.
Van Valkenburg, J., concurred.