(dissenting): The question is whether defendant’s demurrer to plaintiff’s evidence should have been sustained. In treating that question I am conceding plaintiff’s evidence was sufficient to establish defendant’s negligence. We need, therefore, pursue only the question of plaintiff’s negligence.
That question requires an analysis of the facts. It is, of course, *140elementary that on demurrer all of plaintiff’s evidence must be construed in thei light most favorable to him. It is also true that all inferences reasonably to be drawn from that evidence must be made in his favor. That, however, does not permit us to ignore plaintiff’s own plain, positive and undisputed testimony where he is the only witness with respect to the particular factual point, or points, involved. Nor does it permit courts to draw inferences contrary to his own plain and unqualified testimony. Were the rule otherwise courts could completely nullify or change the testimony of any witness.
Before considering plaintiff’s testimony I desire to frankly but respectfully state that, in my opinion, the real question presented by the relatively simple and undisputed facts in this record is not accurately reflected by the majority opinion. The question is there stated as follows:
“Must a driver always drive at such a speed that he can. stop his vehicle or turn it aside within less than twenty-two feet after he has passed a set of bright headlights which momentarily blind him?” (Emphasis supplied.)
No member of this court so contends. Not even counsel for plaintiff (appellee) contends plaintiff was only “momentarily” blinded. The opinion of the court concludes as follows:
“Surely this court would not be justified in holding that cars or trucks can be left upon the highway in defiance of the statute and the owners or drivers thereof be relieved in all cases from responding in damages by reason of a rule which holds that anyone who runs into the parked vehicles is guilty of contributory negligence as a matter of law.” (Emphasis supplied.)
I know of no one who favors the establishment of such a wholly unrestricted and unreasonable doctrine. We are not dealing here with all cases which may possibly arise. It will be entirely sufficient for present purposes to decide this particular case and to make sure we decide it upon the undisputed facts disclosed by this record.
It must be clear to the most casual reader that the majority opinion interprets plaintiff’s evidence to mean that the view of his lane of traffic, as he approached the scene of collision, was obscured only “momentarily,” and then only “partially,” and that this momentary partial blinding occurred only at the point where the plaintiff passed the blinding lights. Assertions clearly intended to convey that impression run through the entire opinion. Concerning these ■ numerous assertions it is sufficient to say that, as I under*141stand it, not even counsel for plaintiff contend plaintiff was only “momentarily” blinded or that the vision of objects in his lane of traffic was only “partially” obscured as he was approaching the blinding lights. The record is clear that plaintiff could see nothing except the bright lights, the location thereof and the sides of the road. Manifestly then the blinding lights prevented him. from seeing what was in his lane of traffic. That is where he was driving. Counsel for plaintiff do not contend the accident occurred on the side of the road but insist it occurred directly in plaintiff’s lane of traffic. Plaintiff’s ability to observe the sides of the road only enabled him to remain in his lane of traffic. It did not enable him to observe objects or obstructions in that lane.
In order to avoid all uncertainty concerning the evidence I prefer to examine the original transcript of the record rather than to rely on the abstracts furnished by the parties. This procedure is in nowise intended as a reflection on counsel for either party. In fact, I find very little, if any, disagreement among them concerning the facts. Moreover, I find my own interpretation of the facts to be in substantial accord with theirs. Nor do I differ substantially with the majority opinion relative to the limited facts disclosed by the direct examination of the plaintiff.
Let us, however, see whether plaintiff, while approaching the scene of collision from the west, was suddenly, or only “momentarily” blinded, and whether his view of his lane of traffic was only “partially” obscured. Those particular points were not developed on plaintiff’s direct examination. They were clearly developed on his cross-examination. No effort was made to change or modify that portion of his cross-examination. It therefore stands wholly undisputed. It reads:
“Q. You were coming around this curve at thirty miles an hour and you saw them for the first time — the lights on this other truck, or did you see them before you turned the corner? A. I saw the lights on this other vehicle before I turned the corner.
“Q. About how far back when you first saw the lights of the other truck or vehicle? A. I don’t know exactly — you can’t see around that curve until you get almost in to it.
“Q. Have you a judgment of the distance when you first saw the lights of this truck? A. I don’t know for sure — three or four hundred feet.
“Q. Thr'ee hundred feet from the truck? A. No.
“Q. Or from the bridge? A. From the bridge.
“Q. The lights on this truck — were they very bright? A. Very bright.
“Q. That blinded you so you couldn’t see the truck or anything else past *142them? A. You couldn’t see nothing except this set oj headlights — except on the sides — of course.” (Emphasis supplied.)
Notwithstanding the above-quoted plain, positive and undisputed testimony the opinion states:
“The inference in the present case favorable to the plaintiff is that he was only blinded as he passed the bright lights.” (Emphasis supplied.)
No testimony is set forth justifying such an inference. I deem it wholly unnecessary to pursue the matter of this inference further. It may, however, be well to say that I do not find where counsel for. plaintiff contend for such an unwarranted inference in favor of their client.
The opinion further states:
“It is asserted, however, that the plaintiff in the present case knew or could have known that he would be temporarily partially blinded when he passed the bright lights but that, notwithstanding such knowledge, he drove at a dangerous rate of speed past them, into darkness.”
Neither counsel for appellee nor any member of this court so asserts. The plain facts are there was no mere temporary blinding only as plaintiff passed the bright lights nor was plaintiff’s vision of his lane of traffic only partially obscured at that particular moment. The vision of his lane of traffic had been completely obscured, as plaintiff’s evidence plainly shows, while he was watching the sides of the road, before he reached the bridge. Furthermore, the bridge was 100 feet long and plaintiff had at least observed the bright lights 300 to 400 feet west of the bridge. Notwithstanding the very bright lights he increased his speed and continued to drive when he could see nothing in his lane.
The question, therefore, is not whether a person merely momentarily and partially blinded by bright lights, and only at the point where he passes such lights, is guilty of contributory negligence, as a matter of law, if he strikes an object beyond such blinding lights. The real question is whether he is guilty of such negligence if, after having had knowledge of the bright lights when 400 or 500 feet away, he increases his speed and continues to drive at such increased speed when he knows he can see nothing in his lane of traffic.
Additional admitted facts should be noticed. This particular plaintiff was entirely familiar with this highway. He had driven a transport truck over this road five or six times a week for a period of five years. When he observed the bright lights 400 or *143500 feet away he knew he had a curve and bridge to negotiate. He knew the lights were very bright. He soon learned he could see nothing in his lane of traffic. He knew he was carrying 3,000 gallons of gasoline and a total load of eighteen tons. With such a cargo he increased his speed and drove blindly, taking his chances, with respect to anything he might encounter in his lane of traffic.
In the instant case the obstruction happened to be a truck which had just been wrecked near the place where the blinding lights were stationed. The obstruction might have been a wrecked or moving hayrack, wagon, buggy or other farm machinery. It might have been a farmer riding a horse or an entire family in any sort of vehicle. It might have been a school bus loaded with children. Did the plaintiff have no legal duty or responsibility for their protection? Could he drive blindly without a regard for their safety? Not unless we are prepared to overrule numerous old and recent decisions of this court to which we shall presently refer. Let us reverse the situation .and suppose this plaintiff were the defendant and his defense would have been that by reason of the blinding lights, he was not able to see anything in his lane of traffic. Would this court hesitate to sustain a demurrer to his defense? I do not think so. The rule to be sound surely must work both ways.
It is said plaintiff testified he thought he could have seen the taillight on the wrecked truck if it had been lighted. He did finally so testify. He probably could have seen it after he passed the bright lights but he concedes that would have been too late. In view of plaintiff’s positive testimony that he could see nothing except the headlights and to the sides as he approached the blinding lights the jury, quite naturally, did not believe he could have seen the taillight if it had been lighted. The jury, therefore, expressly found he could not have seen it. But we are now considering the demurrer and for that purpose we must accept plaintiff’s statement as true. We do accept it fully so far as it goes. Nowhere, however, did plaintiff testify that if the taillight had been burning he could have seen it through the lights which so completely blinded him in time to have stopped, or turned aside, at the speed he was traveling and the load he was hauling. Manifestly, such proof was essential to make the absence of a taillight material. The result is defendant’s negligence in failing to have a taillight burning was not shown to have caused or contributed to the collision in any manner. We may pursue the subject one step further. How can *144it aid the plaintiff, even if he had a right to assume the taillight would be burning, when he fails to show that if it had been burning he could have seen it in time to avoid the collision? Manifestly, the absence of the taillight, assuming it was absent, cannot aid the plaintiff in this case.
The opinion also states the jury might think plaintiff was justified in proceeding because he was able to determine the vehicle with the bright lights was not in his lane of traffic. The point might be well taken if there had been a collision between that vehicle and plaintiff’s truck. There was no such collision. The question here involved pertains to plaintiff’s conduct with respect to an entirely different object which plaintiff struck while it was stalled in his, and in its, lane of traffic.
It is well to remember this is not a case of two vehicles approaching each other where the lights of the cars are such that the parties have obtained a vision of the highway between them before passing each other and are thus reasonably assured of safe passage after they pass each other. This is a case where the plaintiff well knew, as he was approaching the stationary blinding lights, that he could see nothing in his lane of traffic in front or behind such lights. Notwithstanding that fact he increased his speed.
This court is clearly committed to the doctrine that a sudden emergency, created solely by defendant, will not preclude recovery as a matter of law. (See quotation in majority opinion from Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550.) In this case, however, plaintiff knowing he could not see anything in his lane of traffic, increased his speed, drove on blindly and helped create the emergency of which he now complains. Clearly the emergency presented after he passed the blinding lights was created by the concurrent negligence of both parties. Under such circumstances the emergency doctrine cannot be invoked in plaintiff’s aid. (Barnhardt v. Glycerin Co., 113 Kan. 136, 138, 139, 213 Pac. 663; Eldredge v. Sargent, 150 Kan. 824, 833, 96 P. 2d 870; 45 C. J., Negligence, § 519.) The facts bring the case squarely within numerous decisions, to be cited presently, in which recovery was denied where a person knowing he could not see deliberately proceeded without assurance he could do so with safety.
Only the decisions from which quotations are contained in the majority opinion require consideration and that may be brief. Such quotations should, however, be considered in the light of some *145additional facts disclosed in those cases. The case of Barzen v. Kepler, 125 Kan. 648, 266 Pac. 69, presented an emergency created by unlighted and undiscernible timbers which projected thirty feet behind the rear end of defendant’s truck. The lights of an approaching car did not blind plaintiff’s vision. He attempted to pass the stopped truck and upon observing the nearness of the approaching car turned back into his lane of traffic. When he did so he encountered the end of one of the projecting timbers. It was properly decided it could not be held as a matter of law that plaintiff should have anticipated the projecting unlighted timbers and that he was not required to stop his car and walk forward to see whether the vehicle had timbers projecting from it. (p. 654.)
In the case of Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193, the plaintiff had met two cars with lights which prevented him from seeing clearly. The second car was immediately behind the first car. He first observed a stalled truck twenty feet ahead of him. The approach of a third car prevented his passing the truck. While this is a somewhat closer case it should be observed it nowhere appears plaintiff there knew 400 or 500 feet away that he would be required to face very bright lights, to negotiate a curve and a 100-foot bridge. Nor did plaintiff in that case increase his speed and drive blindly knowing he could see nothing in his lane of traffic.
In Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438, one of the defendants met an approaching car which gradually blinded her. Before that, however, she had seen, in the distance, the taillight of a car in her lane of traffic. She thought, and had reason to think, the car with the taillight was moving. She reduced the speed of her car to twenty or twenty-five miles per hour. It later developed the car ahead of her was stalled. It was properly held the question whether she exercised reasonable care under those circumstances should be submitted to the jury. The instruction plaintiff requested was, under the facts of that case, held to be too broad and, in my opinion, was properly refused.
In McCoy v. Pittsburg Boiler and Machine Co., 124 Kan. 414, 261 Pac. 30, no bright lights were involved. The speed of plaintiff’s car had been reduced to eight miles per hour. The evidence disclosed plaintiff had kept a lookout straight ahead. He was traveling partly on the streetcar track which was slick. His car was turned sharply off the tracks to keep from slipping. In turn*146ing to his right he struck a stalled truck which had been parked there for the night and had no lights on its rear at the time of the collision. There was evidence showing that in the exercise of reasonable care the truck parked near the curbing could not, under the circumstances, have been seen more than ten feet away. Of course, streets and highways are not provided for the storage of automobiles. See, however, in same opinion discussion of the practical phases of stops of greater or lesser duration, (p. 418.)
The majority opinion also stresses the case of Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103, for the purpose of showing that the question of plaintiff’s negligence in the instant case was for the determination of the jury. In my view there is practically no similarity in the facts. Undoubtedly that case was properly submitted to the jury. There again no blinding lights were involved. Plaintiff ran into pipes which projected eight feet back of an unlighted moving trailer as he attempted to pass the trailer. Plaintiff could see the wheels of the trailer when two hundred feet away. He could not, however, see the projecting pipes because the truck bed was above the range of his headlights. In attempting to pass the truck plaintiff slackened his speed. The undiscernible pipes caught the top of his car, causing the injury.
The opinion quotes from Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721. That quotation should be read in the light of the facts. Here again plaintiff was not driving into bright lights knowing he could see nothing in his lane of traffic. Plaintiff had reduced the speed of his car to about fifteen miles per hour. Defendant’s truck protruded partly across the center of the street. Plaintiff did not see “. . . defendant’s dark, drab, unpainted, unlighted truck, the body of which stood high enough off the ground that it was above the range of plaintiff’s lights.” The result was plaintiff did not see the truck until he was about fifteen feet from, it although the lights of his car were in good working condition, (pp. 719,720.)
In the cases from the majority opinion just analyzed there was at least some question whether the exercise of reasonable diligence in keeping a lookout would have revealed, within the range of plaintiff’s vision, the particular object encountered in time to stop or turn aside. In the instant case plaintiff’s undisputed evidence did not merely disclose he knew of the bright lights when 400 to 500 feet away. It further disclosed he soon learned he could see nothing in his lane of traffic. Notwithstanding such dangerous circum*147stances he increased the speed of his gasoline transport truck, drove blindly over the remainder of the curve, over the 100-foot bridge and into the stalled truck twenty-two feet beyond the bridge. Such, and much less, careless driving repeatedly has been held to constitute negligence as a matter of law. The rule requiring a driver to articulate his speed with his ability to see and stop, or turn aside, within the range of vision provided by his headlights has been early and recently applied on demurrers to evidence and on motions for judgment on the findings of the jury where the special and detailed findings presented the same legal question.
In the recent case of Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681, the principle was applied on a motion for judgment on the findings of the jury. There the plaintiff drove into a parked gasoline transport truck when blinded by lights. There was testimony by the driver of plaintiff’s car that if the truck had contained warning lights he could have seen them but he did not show he would have seen them in time to avoid the collision. When the truck came within the vision of his car lights the distance was too short to enable the driver of the car to avoid striking the truck. We held:
“The general rule with respect to a driver’s duty and care in the operation of a motor vehicle on public highways is that he must keep his vehicle under such control as will enable him to articulate his speed with his ability to stop, or turn aside, within the range of vision provided by the headlights of his car.
“The general rule stated in the preceding paragraph applies to a person who, by reason of bright lights of oncoming cars and his own dim lights, cannot see an object on the highway ahead of him and who, notwithstanding his inability to see, nevertheless continues to drive at a rate of speed which makes it utterly impossible to stop, or turn aside, in time to avoid a collision with such object.” (Syl. HIT 1, 2.)
See numerous precedents cited at page 499 in the above case, and see, also, Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827.
In the Harrison case it was said:
“The brighter the lights of the oncoming cars the greater was the notice they were approaching. The meeting of cars on a main-traveled highway is a common and not a special experience of the traveling public. It will be observed the jury made no findings the driver of appellees’ car was suddenly blinded. No special question was submitted to the jury upon the subject of sudden blinding. The reason is obvious. A careful search of the record discloses there was no evidence of sudden blinding, or for that matter, of any blinding which could not have been anticipated. The conceded facts are the driver of appellee’s car noticed the bright lights and put on his dimmers, which was proper. But with his dimmers on he concedes he drove practically *148blind at the high rate of speed of fifty miles per hour. One who so drives, does so at his own risk and peril. (Howard v. Zimmerman, 120 Kan. 77, 80, 242 Pac. 131.).” (p. 499)
In the instant case plaintiff’s own evidence discloses his blind driving contributed to the creation of the dilemma he faced after he passed the blinding lights and that it was wholly impossible for him to stop or turn aside at the speed of thirty-five miles per hour.
The above general rule has been applied to persons, like appellee, who claimed they could not see an object in their lane of traffic by reason of bright lights of oncoming cars (Howard v. Zimmerman, 120 Kan. 77, 80, 242 Pac. 131; Harrison v. Travelers Mutual Cas. Co., supra); to persons driving at night with dim lights (Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317); to one driving at night when it is misting and raining (Rhoades v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994); to one driving into darkness, fog, and engine smoke (Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 316, 282 Pac. 593); to one driving in fog (O’Connell v. Lusk, 122 Kan. 186, 250 Pac. 1059); to one driving in the daytime, at the rate of fifteen miles per hour, when she could not see an object ahead of her in time to stop or turn aside by reason of heavy dust (Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; see, also, Goodman v. Wisby, 152 Kan. 341, 103 P. 2d 804, another dust case to the same effect); and to one driving into smoke so dense that she lost her sense of direction, drove off the highway and was injured (Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822). Other cases might be cited but these will suffice.
I pause to emphasize that the general rule previously stated, and not any exception thereto, was applied in all of the foregoing cases. Appellee intimates the instant case should constitute an exception to the general rule but he fails to show what facts take it out of the general rule. Nor can I find where the instant majority opinion, in principle, distinguishes this case from those cases or where it recites evidence that brings this case within any recognized exception to the general rule.
In Carson v. City of Wichita, 148 Kan. 215, 80 P. 2d 1114, the earlier cases were reviewed, and we said:
“At almost every session of this court we are compelled to deny damages to persons injured in automobile accidents because, however negligent their adversaries in the litigation may have been, they themselves have also been negligent in driving their cars (or riding in them without protest) in sitúa*149tions where they could not see where they were going, and could not be assured that they could proceed with sajety.” (p. 220.) (Emphasis supplied.)
The statement from the Carson case was emphasized in the recent Erazier case, supra. The decision in the Frazier (smoke) case was based upon the various cases herein cited. In concluding the pertinent portion of the opinion in the Frazier case, Mr. Justice Thiele, speaking for the court, said:
“While it is true in the instant case the plaintiff did not run into an obstruction such as a parked vehicle nor collide with an oncoming vehicle, nor run into a defect in the highway, she did proceed along the highway when she could not see where she was going with the result that she lost her sense of direction and drove off the highway and into the place of danger where she was injured. Under the decisions above mentioned the legal cause oj her injuries was her oion negligence." (p. 664.) (Emphasis supplied.)
Former opinions contain the same or a similar statement of principle. The principle is fully treated in those opinions and it does not require further discussion here. If the principle is to be repudiated those decisions should be overruled. If the decisions are not overruled they control the instant case.
The majority opinion emphasizes G. S. 1943 Supp. 8-5,108 which, under the conditions therein stated, requires the placing of flares or other signals upon the highway. Failure to place such signals around defendant’s pickup truck, if the conditions here required them, was part of the defendant’s negligence. We are now concerned with plaintiff’s negligence and with a demurrer to his evidence. If it were possible for plaintiff to absolve himself of his own negligent blind driving and increase of speed by virtue of defendant’s alleged negligence in failing to set out flares, the burden of proof was upon plaintiff to show (1) the absence of flares; and (2) that if they had been present he could have seen them through the blinding lights in time to avoid the collision. This burden plaintiff failed to meet in both particulars. Plaintiff does not contend defendant supplied the deficiency of proof.
It is asserted courts should be practical. To that abstract assertion all will readily agree. But, in order for courts to be truly practical, they must first be just to all parties concerned. Although we may differ in our views, that is the intent and desire of all of us. If, however, the assertion that courts should be practical is intended to mean they must overrule a demurrer to evidence when, as here, it clearly appears a driver deliberately proceeded, and increased his speed, when definitely knowing he could *150not do so with assurance of safety to himself or others, I cannot agree. While some drivers may continue to so drive it is neither practical nor just that, when doing so, they should be permitted to compel another to respond in damages for injuries resulting from the concurrent negligence of both parties. Both are required to be vigilant and careful to avoid injuring those who are sharing the use of the streets or highways. (Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438.) In my opinion plaintiff’s evidence clearly disclosed he was guilty of contributory negligence as a matter of law and that the demurrer to his evidence should have been sustained.
Thiele and Hoch, JJ., join in the foregoing dissenting opinion.