(dissenting): I find myself unable to agree with the conclusions reached by a majority of the court in this case. I choose to place my dissent on the ground that the condition pointed out in the highway was not a defect. The statute under which the action was brought is as follows:
"Any person who shall without contributing negligence on his part sustain damage by reason of . . . any defect in a state highway . . . may recover such damages from the state of Kansas.” (R. S. 1931 Supp. 68-419.)
The condition complained of was two depressions in the road. One of these depressions extended a little to the left of the center of the road. This one was two feet long by ten inches wide by four inches deep. The other extended a little to the right of the center *817of the road and was two and one-half feet long by ten inches wide by five inches deep. They were a short distance apart. The road was of the type with which we are all familiar, known as a “sand and gravel road.” No one would have argued that two such degressions as these were defects in the days when we were content to travel on dirt roads.
The problem that confronts the state in its business of building highways is the demand for more miles of all-weather road. The most desirable type of road is of cement or brick; the next is perhaps the macadam or blotter type, and last is the sand-and-gravel type. Now, depressions such as the ones we have spoken of in this case do not appear in the cement, brick, macadam or blotter type, but we frequently find them in the sand-and-gravel type. The answer would appear to be, then, that only the more substantial type should be built. That cannot be, however, because the public is demanding more and more mileage of all-weather road. The funds of the state available for road construction are limited— hence the less expensive type. Now what are the disadvantages of the sand-and-gravel road? There must be some else this type would be used to the exclusion of the more expensive. We do not have to look far. The worst disadvantage is one familiar to every person who travels on the highways of the state. Heavy traffic in dry weather will wear it out. Unlike the “one hoss shay” it does not wear off evenly. Where the soil has less viscosity or the coating of sand and gravel was put on thinner than in other spots it wears through and depressions appear. Once the depression is started, the elements unite to make it worse. Especially is this true of a summer such as the one during Which this tragedy occurred. There was no evidence that these depressions were in the same condition on the night complained of as they were five days before that night. This may be safely said because no one could say such a thing unless he stood by the holes and watched them.. Depressions such as these on a road such as the one in question are changing every minute of the night and day, due to the action of the road and the wear and tear of traffic. But are they defects? Not at all. They are conditions which one should expect to find in a road of that type. Such conditions are an inherent quality of a sand-and-gravel highway as much as for a cement highway to be slippery when it is wet. If the driver of the car in question was driving at a rate of speed *818that caused him to lose control of his car when he struck these depressions he was going too fast, whether it was twenty-five or thirty-five miles per hour. One driving an automobile on a sand- and-gravel road is under a duty to so manage it that a condition such as that described herein will not cause him to lose control.
In my opinion the judgment of the trial court should be reversed, with directions to dismiss the action.
I am authorized to say that Mr. Justice Harvey concurs in this dissent.