The opinion of the court was delivered by
Hopkins, J.:The action was one under the federal employers’ liability act by a widow, as administratrix, to recover for the death of her husband. Plaintiff prevailed, and defendant appeals.
The facts were substantially these: M. G. Toops had been in the employ of the defendant railway company since 1913. Eor several years prior to August 12, 1926, he had been in passenger service running out of Kansas City. The middle of August of that year he was transferred to Dodge City as freight conductor from Dodge City to Elkhart. (He had not run on this line for some thirteen years.) On August 12, 1926, with a crew consisting of himself as conductor; Nolan, head brakeman; Hemphill, rear brakeman; Hall, *190engineer, and Phillips, fireman, he ran from Dodge City to Elkhart. They passed through Rolla in the afternoon, but did not stop. They started on the return trip from Elkhart about eleven o’clock the night of August 12, picked up four empty cars at Wilburton, and arrived at Rolla between 12:30 and 12:45 the morning of August 13. The train consisted of about thirty cars.
The main line of the defendant railway company through Rolla runs approximately east and west. There was a passing track north of the main-line track, 1,600 or 1,700 feet in length, and another passing track, 800 feet in length, south of the main-line track and south of the depot, which was also south of the main-line track. South of the last-mentioned passing track was a third track which ran to two elevators, which were south and west of the depot. For convenience we will denominate this the elevator track. Crossing all the tracks west of the depot and passing between the elevators was a public road.
Upon arrival at Rolla the train stopped, with the engine just west of the depot. Hemphill and Toops, who were riding in the caboose, got out and walked toward the front of the train, one on either side. They had orders to pick up five loaded grain cars which were at the elevators on the elevator track and to take fifteen empty grain cars from the north passing track and spot them at the elevators on the elevator track. Nolan, who had been riding the front of the train, took the engine with the four empty cars picked up at Wilburton, went east on the main line, backed on to the elevator track and picked up the five loaded grain cars. Hemphill went across to the elevator track and assisted Nolan in connecting up the loaded grain cars. Having done so, they went on east, got on the mainline track and then backed west to a coupling with the train, Toops making the connection with the air hose. Nolan, Hemphill, and Toops met on the station platform and went over the switch list together.
The grain cars on the north passing track were in two sections, four or five of them west of the public road crossing. East of the grain cars on the passing track were twelve stock cars. There was a cross-over switch from this north passing track to the main line about 900 feet east of the depot. The stock cars were foul of the cross-over switch, and in order for the engine to get on the north passing track to connect up with the empty grain cars it was necessary for it to go to the east end of the passing track, back into the *191stock cars, push them back and couple om to the grain cars. Nolan went east with the engine, backed in on the north passing track and coupled into the east end of the stock cars.
Hemphill left Toops, went from the main line north to the passing track and coupled up the stock cars with the grain cars. Toops remained on the station platform, going through his switch list. After coupling with the grain and stock cars they all (except Toops) proceeded east on the north passing track out on the main line. Nolan last saw Toops alive on the platform at the time the grain cars were pulled out on to the main line. Hemphill last saw him alive on the east end of the platform with his lantern on a truck and his train book in his hand, looking through his switch list. He was run over and killed at a derail on the elevator track about 300 feet east of the depot by the grain cars which were “kicked in” on such track by the train crew. There was a rather sharp curve in the elevator track where it left the main line. It went through a cut, the bank of which on the south side was close to the elevator track and eight or ten feet high. A person on the elevator track at the derail mentioned could not be seen by the engine or train crew at the point where the “kick in” was made.
The principal question for our consideration is whether under all the facts and circumstances there was sufficient evidence to take the case to the jury and tp sustain the jury’s finding that the defendant was negligent in the manner in which it “kicked in” the cars.
The jury answered special questions as follows:
“1. Was M. G. Toops, the deceased, in charge of the train and switching operations at and before the time he was killed? A. Yes.
“2a. Was M. G. Toops killed by coming into contact with the fifteen grain cars that were being placed on the elevator track?
“2b. If you answer the preceding question ‘yes,’ state which car, if any, struck Toops. A. The first car on west end of the fifteen grain cars.
“3. Were there any marks of blood on the rear car of the fifteen grain cars? A. There was no direct evidence to show there was or was not.
“4. Were there marks of blood on the south wheels of all the other grain cars except the rear car? A. Yes.
“5. Did Toops know of the coming on the elevator track of the fifteen grain cars? A. He knew they were to come.
“6. Was Conductor Toops supplied with a good lantern? A. He had a good lantern.
“7. If you answer Q. No. 6 in the affirmative, then state if he could have by the aid of said lantern seen the approaching cars. A. No.
“8. Had not Toops formerly worked on the Elkhart branch from Dodge City to Elkhart? A. Yes.
*192“9. Had the yards at Rolla, Han., been materially changed since he worked on said line? A. We don’t know.
'TO. State fully in what the negligence of the defendant consisted, if any. A. First, in not protecting rear end of fifteen grain cars. Second, in engineer not sounding signal when starting to back cars around curve and through cut. Third, poor condition of the track at the derail switch.”
The defendant contends that the plaintiff failed to show many essential facts necessary to entitle her to go to the jury on the issues. To determine the correctness of this contention requires a careful review of what evidence had been adduced. The facts narrated above are not in dispute and need not be repeated.
A book of rules prepared by the defendant and issued to trainmen for their government in handling of trains was introduced in evidence. Some of these rules are pertinent here. And it is perfectly clear they were not followed.
“Station. — A place designated on the time-table by name, at which a train may stop for traffic; or to enter or leave the main track; or from which fixed signals are operated.
“Yard. — A system of tracks within defined limits provided for the making up of trains, storing of cars and other purposes, over which movements not authorized by time-table, or by train order, may be made, subject to prescribed signals and regulations.”
Under the evidence Rolla is a “station.”
“Sec. 102. When cars are pushed by an engine (except when shifting in making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need.
“Sec. 320. Trainmen and yardmen, before switching or moving cars at stations, must ascertain that there are no persons or property on or about the same that might be injured or damaged by so doing.
"Rule 381. Conductors of freight trains are required to do their work thoroughly at stations, bearing in mind that trains are run to do the business of the road and not merely to make time over it. Trains, however, are expected to run with regularity and as nearly on time as the prompt performance of work and rules will permit.
“Rule 396. They must do such switching as shall be necessary in taking cars for their own trains or in leaving cars from the same. Local freight trains are generally to do necessary switching at stations, but any freight train may, in case of necessity, be called upon by station agents to do such work, and the same will be performed. Conductors when at stations doing work will attend personally to the switching unless engaged in checking the unloading way freight as provided in rule 389, when they may allow brakeman, if competent, to do the switching.
“Rule 483. They will take into consideration that the lives of passengers and trainmen, as well as the property of the company, are intrusted to their *193care, and it is fully expected and required that they will not only attend to all signals and instructions, but also that they will, on all occasions, be vigilant, and cautious themselves, not trusting alone to signals or rules for safety. Whenever it becomes necessary to protect rear of train, enginemen will promptly signal flagman as per rule 14 (c).
“Sec. 473. They will, in rounding all curves where the view is obscured, sound the whistle, using the signal prescribed in rule 14. (Rule 14 provides for two distinct whistles.)
“Sec. 478. They will use great care in backing up to take a train or backing into a siding to take or leave cars, and will approach so slowly that couplings can be made without injury to persons or property.
“Sec. 24. When cars are pushed by an engine (except when shifting or making up trains in yards) a white light must be displayed on the front of the leading car by night.”
Under the rules it was the duty of Conductor Toops to assist in the switching operations; it was his duty personally to see that the cars were spotted at the respective elevators as called for by the switch list which he was examining when last seen by Nolan and Hemphill; to see that there were no obstructions on the track; that the road crossing west of the depot was left open; that the brakes were properly set to hold the cars at each one of the elevators. The performance of these duties required him to be on the south side of the elevator track, the elevators being on that side, and also the engineer’s side of the train. There was a path on the south side of the main line eastward from the depot. It is the theory of the plaintiff that Conductor Toops followed that path to a point north of the derail and then started south to cross over the elevator track.
The elevator track at the derail was skeletonized. A witness stated there was possibly a “gallon” of dirt between the ties. Thistles and weeds had- grown up between the ties and obscured the actual condition of the track. The route suggested by the plaintiff is the nearest and most practical one from the depot platform where Toops was last seen to where his body was found. No eyewitness saw him meet his death. His body was found between the rails of the elevator track at the derail. His shoulders were upon, and jammed against, the derail, his body lying diagonally across the track between the rails, with his feet to the north and east toward the north rail. His head and right arm were mashed off, and with his hat were lying south of the south rail of the elevator track near the derail. His lantern and lead pencil were lying near together, south of the elevator track about two or three feet away from the *194south rail of the track, his lead pencil lying between his lantern and the south rail. His train book was found lying in the center of the track between the rails. The surface of the track between the rails showed clearly that the body was dragged westward two or three feet until his shoulders were jammed against the derail. Three or four cars passed over his body and were standing west of the derail where they stopped from lack of momentum.
As before noted, the train crew, except Toops, had “gone east on the main line with the train. The night was so dark that during the switching operations the men could not be seen any considerable distance. Their respective positions were discernible only by the light from their lanterns. Neither the enginemen nor brakemen, from their positions, could' be seen around the curve on the elevator track on account of the cut and the bank above mentioned. Hemp-hill gave the kick-in signal to Nolan and the enginemen. An attempt at a kick-in was made but was not successful because the condition of the road was such that Nolan was unable to get on the train and cut the grain cars from the stock cars. Nolan testified:
“I was slow about getting on and I missed the pin. I was slow on account of the condition of the track. There were weeds there and the tracks were skeletonized and bad footing along there.”
Here it is contended that the crew was derelict in its duty. Nolan gave a second kiclc-in signal. The cut was successfully made. Instead of one of the brakemen riding the kicked-in grain cars, according to the rules, both remained with the engine and the stock cars. The kick-in sent the fifteen grain cars west down the mainline track and on to the elevator track with no one on them to control them or stop them in case of danger. No light was on the front end of the moving cars; no kick-in or push signal was given by the engineer by blowing the whistle nor was the bell rung as a warning to any person who might be on the elevator track or anyone who might be crossing the tracks. Each of these omissions was a flagrant breach of the rules devised by defendant itself for the protection of its train crews.
It is argued that the deceased was in charge of the train crew; that he planned out the switching operations, which were carried forward under his orders; that he told Hemphill he would watch out for the grain cars, and therefore it is not reasonable to suppose that he would expect a kick-in signal or that one of the trainmen would ride in the kicked-in cars, or place a lantern at the rear car *195to indicate the cars were coming; that since the stock cars were to be returned to the north passing track after the grain cars were kicked-in, Toops knew that neither bralceman would ride the grain cars. ' The contention is not sound. In the first place, there is nothing in the record to indicate by reasonable inference or otherwise that the deceased expected the crew to do its work other than in accordance with the company’s rules. Second, there is nothing upon which to base the assumption that the deceased had any reason to believe that one of the brakemen would not ride the kicked-in grain cars. Nor is there any evidence to show that Toops knew the stock cars were foul of the cross-over switch. It was too dark for him to see them or note their position. Had they been east of the cross-over switch the engine would have backed in and coupled with the grain cars. Testimony by Hemphill concerning the conversation follows:
“The last time I saw Mr. Toops before his death, he was standing at the east end of the platform station on the platform. I, did not at that time have any talk with him. Before that I had talked with him. He was coupling up the air hose on these four or five cars that we picked up that were coupled on to the train; he was coupling the air hose up on them, and I walked down the south side of the passing track to, this crossing to make that joint, and while Mr. McHenry was bringing the engine through the stock track I was standing at the crossing on the north side of the main line talking to Mr. Toops; he was on the south side of the main line, and he asked me if these fifteen cars were all in one cut and I told him they were, and that I would kick them all into the elevator track. He said, ‘All right, I will look out for them.’ ”
The fact that Toops knew the cars were coming does not, in our opinion, relieve the defendant of liability for the negligent manner in which the cars were sent in on to the elevator track. He did not know that they would be kicked in without a signal from the engineer; he did not know that they would come silently down upon him without a white light on the leading car; he did not know that they would come down upon him without a brakeman in control thereof and in a position on the end of the car where he could see persons upon the track and protect them from the danger. It must be assumed that Toops was familiar with the rules and likewise had a right to believe that his brakemen and enginemen were familiar with them; he had a right to believe that the rules would be observed by each one of his trainmen; it was but natural for him to make the attempt to cross over the track because no warning of any *196kind had been given that the cars were approaching. He had a right to rely upon the requirements of rule 473 (supra) which provided that in rounding all curves where the view is obscured, a whistle shall be sounded twice, notifying him that the cars had been lcicked-in on the elevator track. Engineer Hall testified:
“It is usual for the engineer to give a signal when he is starting up a train on a kick signal.”
The deceased was not familiar with the elevator track; he approached it in the dark from the north for the first time in thirteen years. He is presumed to have been exercising due care and it may therefore be assumed that when he arrived at the track and attempted to cross it he listened for signals and heard none; that he looked for approaching cars with a light and saw none and that he-stepped upon the defective track for the purpose of crossing over and instantly became aware that the kicked-in cars were upon him, but on account of the defective condition of the track it was impossible for him to escape; that in making an effort to escape he-was knocked down, and as he fell forward his hat, lantern and pencil were propelled to the south side of the track. On account of the curve in the track his lighted lantern (which was thrown' or fell out of his hand while falling) could not be seen by the crew. The position of the body indicates that he was knocked down by the west end of the moving grain cars. His train book containing thirty-four or thirty-five bills dropped into the center of the track between the rails and was lying two or three feet east of his body.
McMullen v. Railway Co., 107 Kan. 274, 191 Pac. 306, was in many respects similar to the instant case. McMullen was a brakeman for the Santa Fe, and was working at the yards at Emporia, helping make up a freight train. It was his duty, when the train was made up, to go to the rear end of the train and close the stop cock and couple up the air hose. The evidence showed that it was customary for trainmen in making up trains in yards to have recourse to the method of lcicking-in cars. McMullen knew of these things. He was found dead. No one 'saw the accident. The jury found the-train crew guilty of negligence. A verdict was rendered for plaintiff and affirmed by this court. It was a no-eyewitness case. Conductor Toops is presumed to have been exercising reasonable care. There-is no evidence to the contrary. He is presumed t'o have been acting in the line of his duty which required him at some time or other to. *197be in the position where he was found. In the McMullen case (supra) it was said in the opinion (pp. 280, 281):
“Counsel for the defendant in their brief say:
“ ‘There was no eyewitness to the accident nor was there any testimony as to how it occurred. It may be assumed, however, that very shortly after the conductor and brakeman left the way car, he left the car and closed the angle cock and at that time the cars were kicked in on track 4, and by the impact, while he was between the rails on track 4, and at the rear end of the way car, was knocked down and run over. This assumption is based entirely on the situation appearing after the' accident. . . . The duty of the conductor and brakeman of the train crew was to examine the seals and check the cars in the train, and that of McMullen was to close the angle cock, hang up the tail hose, and couple up the air hose in the train. This was usually done after the train was made’ up and just before or after the road engine was attached to the train. Although from what he told Doctor Eckdall, it was not the proper time to do so, he thought it had to be done and he would perform that duty while the train was being made up.’
“From all this testimony and the rules of the company referred to, and the condition of affairs assumed by counsel for defendant, it seems unreasonable to hold that McMullen was not engaged in the performance of his duty when injured, or that he was not located and engaged as the switch crew knew he or some other brakeman ought to be.
“While it may not have been the duty of the switch crew to keep a lookout under ordinary circumstances for a member of the train crew attending to the air couplings, the violent collision caused by the wrong signal and its effects were such as to make it a question for the jury whether such operation was negligent or not. (Saar v. Railway Co., 97 Kan. 441, 155 Pac. 954.)
“But it is urged that the negligence on which the jury based the verdict was other than that alleged in the petition. We hold, however, the charge that the switch engine and cars were shoved at a dangerous rate of speed and run with great force and violence without warning against the other cars of the train, causing the way car suddenly and violently to move backwards over the body of McMullen, fairly includes the cause of such alleged violence, which was the transmission of the wrong signal. (Linker v. Railroad Co., 82 Kan. 580, 109 Pac. 678.)
“It is also urged that the deceased assumed the risk, thereby exonerating the defendant. In Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747, we held that in an action under the federal employer’s liability act it was error to instruct that the assumption of risk could only be established by showing that its, danger was so glaring that a person of ordinary prudence would not have attempted it. In the opinion it was said:
“ ‘The employee is not regarded as assuming unknown or unappreciated risks arising from his employer’s neglect, unless they are so obvious that an ordinarily prudent person would observe and appreciate them.’ (p. 476.)
“The federal supreme court in Seaboard Air Line v. Horton, 233 U. S. 492, held that congress in enacting this legislation based the action upon negligence only, and excluded responsibility of the carrier to its employees for defects not attributable to negligence. Touching risks not naturally incident to the occupation it was said:
*198“ ‘These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the ciroumstances would have observed and appreciated them.’ (p. 504.)”
(See, also, Reese v. Phila. & Reading Ry., 239 U. S. 463; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310; Ches. & Ohio Ry. v. Proffit, 241 U. S. 462; Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18.)
It is contended that the deceased “assumed the risk involved in the operation.” We believe that the condition of the track and the manner in which the train crew kicked-in the fifteen cars were not risks which Toops assumed. There was no evidence that he knew it was a custom of this train crew or of any train crew to kick-in cars at stations in the manner in which these were kicked-in. There was some testimony that it was the custom to kick-in cars in making up trains, but we believe the inference can fairly be drawn that that had reference to the making up of trains in yards and not to switching operations at way stations. As before noted, the evidence was that Rolla was not a yard. The defendant’s rules specify that when cars are pushed by an engine (except when shifting or making up trains in yards) a white light must be displayed on the leading car at night (rule 24) or a flagman must be on the front of the leading car by day. (Rule 102.)
In 39 C. J. 692 it is said:
“Risks which arise from the negligence of the master or those representing him are not ‘ordinary risks’ incident to the employment, but are ‘extraordinary risks.’ Hence, under the general rale as to extraordinary risks, but subject to the limitations hereinafter considered, risks which result from the negligence of the master, that is to say, those risks which are avoidable by reasonable care on his part, are not assumed by the servant'. The master, in the proper performance of his duties as such, is bound to exercise care and prudence to prevent his employees from being subjected to unreasonable risks or dangers, and to agree by implication of law not to subject a servant employed by him to extraordinary or unusual perils, and the servant has the right' to assume that the master will perform his duty in this respect, except to the extent that the rule may be modified as to risks that' are so open and obvious that a man of ordinary prudence would see and appreciate them; and it is very generally declared that the risk assumed commences only after the master has exercised due care in the performance of the duties which the law casts upon him.” (See, also, 18 R. C. L. 676, 677.)
The defendant cites and relies on Salisbury v. Atchison, T. & S. F. Rly. Co., 125 Kan. 131, 263 Pac. 791. The facts in that case are entirely different from #hose in the instant case. The plaintiff there testified:
*199“ T was struck in the back by the train. I don’t know what part of the train struck me. . . . Something that stood out past the cars hit me. I do not know what it was. The train kept going on after it hit me. I didn’t know what it was that hit me. I did not see the thing that struck me.’ ” (p. 133.)
In the Salisbury case the court quoted from Douglas v. Mitchell’s Ex’rs, 35 Pa. 443, as follows:
“ ‘As proof of a fact the law permits inferences from other fact's, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are, ascertained by just inferences. Not so with a mere presumption of fact. No presumption can with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be’ drawn, none is drawn.’ ” (p. 135.)
Here several physical facts established by the evidence clearly show how Conductor Toops met his death. It is proper, therefore, to draw inferences from those physical facts. The fact that the track was skeletonized and dangerous, especially in the nighttime unless great care was used by the person crossing over it to avoid falling; the fact that the lantern was lying in the weeds three or four feet south of the track and the conductor’s lead pencil was between it and the south rail; the fact that his head, arm and hat were on the south side of the track; the fact that his train book with thirty-four or thirty-five bills in it was lying in the center of the track about three feet away from his body; the fact that his body had been dragged down the center of the track two or three feet until the shoulders were j ammed against the derail, are all physical facts from which proper inferences may be drawn as to how the death occurred.
In the Salisbury case, swpra, it was observed that — •
“With the presumption that the injured employee used due care goes the correlative presumption that the employer used due care. This presumption must be overcome by evidence. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved. The circumstances must not themselves be presumed, and one presumption cannot be built upon another.” (p. 134.)
The presumption that the defendant employer in the instant case used due care was overcome by the evidence.
It is argued that there was no evidence to support the claim that the deceased was struck by the west end of the fifteen moving grain cars, but that he must have attempted to climb to the top of the train and somehow or other have fallen between the first and second moving cars. The argument is not reasonable. The physical facts from which a reasonable inference must follow indicate that the de*200ceased was struck by the west end of the cars. For instance, the position in which his lantern, hat and pencil were found. He was right-handed. Inasmuch as he had come south to cross the track it is natural to conclude that when he was struck his pencil and lantern were thrown out and away from the track. His train book, with the bills in it, was found in the center of the track between the rails and east of his body, indicating that he was carrying the train book in his left hand at the time he was struck, and dropped it in the center of the track. Had he attempted to climb on the train and fallen off, the train book would undoubtedly have been found in his pocket. His body was dragged between the rails for a distance of two or three feet. It is argued with much emphasis that the deceased could not have been struck by the first car because there was no blood on the wheels of that car. The contention does not appeal to us for several reasons. First, there was testimony by a physician showing that “in a crushing injury where a railroad car wheel or engine mashes off a member it mashes up the tissue so badly, including the blood vessels, that there is no bleeding immediately following, like there would be if it was cut off with a sharp instrument.” Second, the position in which the body was lying, with shoulders on the derail, breast up, legs and feet extending north across the track and a little to the east, the head and right arm having been mashed off and the arm found west of the head; the scraping of the dirt and gravel in the roadway, showing that the body had been dragged, considered altogether, give evidence of the fact that the deceased was struck, knocked down and dragged or rolled by the first car, but that the wheels of the second car were the first to actually run over the body. On the. other hand, if he had attempted to climb on the moving train and had fallen, he would naturally have fallen outside the rails. His body would not have been inside the rails and lying across the roadbed.
The defendant argues that it was not the custom and practice to have a brakeman at the rear end of the cars which the crew were moving in switching operations, but it says that “the protection of the public is a very different proposition, and with regard to the public the rule probably is that in switching at night there should be a brakeman or flagman on the rear car with a light; but in this case the cars were not approaching a public crossing nor any like place.” The last statement disregards the fact that there was a public road *201crossing over all of the tracks just west of the depot and running between the elevators where the grain cars were to be spotted.
A number of cases are cited by the defendant in support of the theory that the giving of signals by the ringing of a bell or blowing of a whistle would cause confusion and is therefore not required. The difficulty with defendant’s contention in this regard is that this accident happened at a station and not within a “railroad yard.” The defendant’s argument is entirely correct so far as it applies to railroad yards. In the instant case the very signals, the lack of which is claimed as negligence, might, if given, have prevented the tragedy. The ringing of the engine bell or whistling from the engine could not have been confusing because there was no other engine moving at the station. A proper whistle would have apprised the deceased that the cars were “kicked” back.
The main contention of the defendant is that there was no prima facie case for a jury, a contention we cannot sustain. This is not one of those cases where we can say as a cold-blooded matter of law that there was no negligence and no liability. The physical facts, the evidence and the fair and reasonable inferences to be drawn therefrom were, in our opinion, sufficient to justify the conclusion reached.
The defendant contends that the verdict ($22,750) was excessive, a contention with which we might be inclined to agree but for the fact that the defendant appears to be in no position at this time to raise the question. No complaint of the amount of the verdict was made by the defendant in its motion for new trial nor in its specifications of error. Under the oft-repeated rule that alleged errors not presented to the trial court cannot be considered here, we are unable to go into this phase of the controversy.
Complaint of the instructions and that the plaintiff was not properly appointed administratrix by the probate court of Douglas county have been considered but cannot be sustained. Nor is it necessary to add discussion of those questions to an already lengthy opinion.
The judgment is affirmed.
Marshall and Hutchison, JJ., dissenting.