(dissenting): Defendant did not attack the petition by motion of any kind, but filed a general demurrer thereto. In this situation it is the settled rule that the petition is to be construed *418most favorably to plaintiff. The opinion as written states this rule well and then, as I read it, proceeds to violate it. We note some of the instances.
The petition alleged that defendant had placed on the side track about 45 cars adjacent to„each other so as to cover the track for about 1,700 feet to the southwest, and a “great many” (the exact number being unknown) to the northeast of the intersection, leaving an opening at the intersection of about 180 feet between the two strings' of cars. The opinion discounts argument of appellant’s counsel that plaintiff’s driver had to keep in mind the possibility that the) cars on the side tracks might be moved while he was crossing and says that the appellant, “for reasons of his own,” did not allege that a train was on the sidetrack. The more appropriate observation ymuld have been that if defendant wished it known in the record whether an engine was attached to the string of cars to the northeast he could have obtained that information by. a motion requiring a definite statement on the point, and “for reasons of its own” made no such motion. From the petition it appears that the string of cars to the northeast was so long the driver could not estimate the number. The reasonable inference is that he did not know whether an engine was attached to the far end of that string of cars, and defendant did not care to have him state that. The opinion concludes that the cars on the sidetrack were standing without an engine attached and that there was no indication “the driver believed they might be moved.” The conclusion is not justified either by the petition or the rules of law pertaining to its construction.
Again it is observed in the opinion that the petition does not allege that when the driver stopped and looked to the southwest for a train that he also looked past the string of boxcars to see if a train was approaching on the curve and did not allege whether such a view was accessible. Again, had defendant desired that situation to be disclosed by the evidence it could have moved the court to require plaintiff to state the facts pertaining thereto. This it did not do, we may assume, for reasons of its own. The observation is one which the court is not justified in making.
In the opinion some calculations are made from which the conclusion is reached that the driver started across the track on which the train was moving at a time when the onrushing train was in plain sight. These calculations are speculative, inappropriate and of a type which I think this court is not justified in making. It is *419said the overall length of plaintiffs semitrailer could not have exceeded 35 feet, citing G. S. 1943 Supp. 8-5,116, but taking no account of the proviso of that section. It is possible that the length of plaintiff’s truck was not limited to 35 feet by the statute. If my memory is correct, counsel for appellant in his argument here stated the overall length of the semitrailer to be 42 feet. But from the record before us we know nothing definite about its length and defendant made no move to have that information placed in the record. There is no occasion for the court to speculate on its length. The computation of the distance the semitrailer would travel at the average rate of five miles per hour, or three miles per hour, is purely speculative. There is nothing in the petition about the speed of the semitrailer as it crossed the intersection, or at any time. It is hardly to be assumed that from a standing position the semitrailer would start at five or three miles per hour, nor is there any reason to say from this record that it would or would not have attained that speed in twenty seconds, let alone traveling the distance stated as an average speed. In Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869, one question involved at the trial was how long it would take a standing streetcar to be started by the operator and to travel its length. The jury found (page 527) that after a passenger had alighted from a streetcar it would take the operator two seconds to close the door, then two seconds to turn the lever and start the car in motion, and then ten seconds for the car to travel 40 feet, its approximate length. I do not think this controlling; indeed, it isn’t, but is simply illustrative of the fact that the computation of where the semitrailer was at a certain time cannot well be determined by an average speed. Here we know nothing about the condition of the highway, whether it was paved or otherwise; or of the crossing, whether it was smooth or rough; nor do we know about the weight of the semitrailer, with its load, if it was loaded; nor at what speed it traveled; hence the court’s conclusion as to where the semitrailer was when the railroad train came around the curve. 2,000 feet from the intersection is purely speculative. Those matters are to be determined in trial courts upon evidence offered.
The opinion treats the crossing as though it had but the two tracks —a side track and one main track — and that plaintiff’s main duty was to look to the southwest for an approaching train. We see nothing in this petition to justify that interpretation. From the *420petition it is clear there are three tracks, and there is nothing to indicate that plaintiff’s driver had any reason to think that a train was more likely to come from the southwest than from the northeast, or whether it would be on the main track nearest to him or the one farthest away. In short, on this point, as well as some others, the opinion appears to view the situation after it occurred as distinct from the way plaintiff’s driver was compelled to view it before it occurred.
The opinion quotes an allegation of the petition to the effect that had the driver stopped and walked forward to the track and looked he could not have seen the train approaching, because of the curve in the track and the boxcars on the switch, at the speed at which the train was approaching, and treats this as argumentative and a negative allegation not admitted by demurrer. We think that position is not well taken. This court had before it a somewhat similar question in Torgeson v. Missouri-K.-T. Rld. Co., 124 Kan. 798, 262 Pac. 564. Evidence was introduced and findings made by the jury upon it, the judgment for plaintiff was approved by the trial court, and affirmed here. The case is reported in 55 A. L. R. 1335, and beginning at page 1340 an annotation sets out a number of cases in harmony with our decision. The opinion on this point was later approved by the United States Supreme Court in Pokora v. Wabash Ry. Co., 292 U. S. 98, 104, 78 L. Ed. 1149, 1154, 54 S. C. 580, 583, and by the Supreme Court of Missouri in Sing v. St. Louis-San Francisco Ry. Co. (Mo.), 30 S. W. 2d 37, 42, and by the Supreme Court of Oregon in Fish v. Southern Pacific Co., 173 Ore. 294, 143 P. 2d 917, 925, and is cited in 44 Am. Jur. 804, 805, in support of the text in harmony with the opinion. The allegation should have been regarded as one of fact and admitted by the demurrer.
There are other matters which might be pointed out, but I shall not prolong this opinion further than to say that upon the whole the opinion construes the petition, and in addition to that, some matters which are not in it, more strongly against plaintiff and its driver— just as though he were assumed to have been negligent — rather than to construe the petition and omit extraneous matters not in it as favorably to plaintiff as they can be made, and as though he were endeavoring, at least, to use due care.
We have trial courts in this state to try questions of fact. Whatever may be the ultimate outcome of this case, a point upon which I express no view, I think plaintiff is entitled to try his case before *421a court equipped to try facts and not have this court speculate on facts and suggest and construe facts not pleaded, or construe facts pleaded against a party which should be construed in his favor.
Another reason prompts my dissent. During the first 47 years of the judicial history of this state this court recognized three degrees of negligence — slight, ordinary and gross — ■ and held the fact that plaintiff was guilty of slight negligence did not defeat his recovery from one guilty of ordinary negligence or of gross negligence; also held the fact that plaintiff was guilty of ordinary negligence did not defeat his recovery from one guilty of gross negligence; also held that where both plaintiff and defendant were guilty of the same class of negligence there could be no recovery. Throughout this time the court was holding that this classification of negligence and the adjudged rights of the parties thereunder did not constitute “comparative negligence,” and further, that the doctrine of comparative negligence was not recognized in this state. Our opinions disclose that the soundness of these conclusions was difficult for some of our attorneys to understand.
„In Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346 (decided May 9, 1908), the court considered this classification of negligence, observed that the early decisions had yielded assent to the academic classification, and further observed that comparative negligence had not been endorsed in this state, and stated that the classification of negligence into degrees was complicated and in fact had been dropped as useless, and that (p. 41) “the doctrine may as well he taken out of the law governing personal-injury cases here and now”; and further said:
“The question always is, Has the care, diligence or skill demanded by the peculiar circumstances of the particular case been exercised? If so, there is no negligence. If not, there is negligence.” (p. 41.)
The syllabus reads:
“1. The doctrine of comparative negligence is not recognized in this state.
“2. The classification of negligence into three degrees is no longer recognized in this state.”
Since that decision the general rule has been that what constitutes negligence is the lack of due care of a party, whether plaintiff or defendant, in the particular circumstances disclosed by the record, and it has been the rule that one whose negligence contributed to his injury or damage cannot recover from another no matter how great was his negligence. The question of comparative negligence, *422or of the negligence of one as compared to that of the other, has not been recognized. This has brought into prominence the question of contributory negligence. Defending counsel have been alert to present it when indicated in any way, and the court has been compelled to pass upon it, and apparently with a growing tendency to sustain a claim of contributory negligence whenever possible; so much so that in Johnson v. Union Pacific Rld. Co., 157 Kan. 633, 143 P. 2d 630, the court held plaintiff could not recover on account of the contributory negligence of the decedent for whose death the action was brought, and ignored cases cited by plaintiff’s counsel and discussed by defendant’s counsel upon a point which probably would have defeated the court’s holding. Now in this case the court goes further and construes the allegations of plaintiff’s petition against him, which should be construed in his favor under the well-settled rule that when a demurrer is being considered to a petition not attacked by motion, it should be construed favorably to plaintiff.
I am somewhat startled that a court of last resort, upon a question which cannot be appealed, can use its power in deciding cases to change substantial rights of litigants by a wave of the hand, as in the Walters case, swpra, or by ignoring unanimous decisions of this court with respect to what matters may be considered in determining negligence as in the Johnson case, supra, or by declining to follow the well-known and well-stated rule that a petition not attacked by motion should be construed more favorably to plaintiff, as in this case. '
The people in a few states have attempted to guard against such holdings by a provision in their constitution. Quite a few others have attempted the same thing by adopting the comparative negligence doctrine by statute. The federal government has done substantially the same thing in its Federal Employees Liability Act and in some other statutes. In this state, and I think in all of the other states and in the federal government, the question of negligent liability of either plaintiff or defendant has been abrogated in certain industries by workmen’s compensation acts which provide measures of liability for personal injury. With respect to highway crossing accidents at least one of the states has attempted to meet the question by eliminating unnecessary grade crossings and by constructing underpasses or overpasses at the principal highway crossings. It is true that none of those measures applicable to the controversy here has been adopted in this state! That is all the *423more reason why this court should not use its ultimate power to prevent a litigant from having the facts of his case tried in a court created for the trial of facts.
Time will not permit the analysis of the many cases cited in the opinion. We observe that in the case of Richards v. Chicago, R. I. & P. Rly. Co., 157 Kan. 378, 139 P. 2d 427, from which a quotation is made in the opinion, that the legal question upon which the decision turned was one of proximate cause as distinct from contributory negligence of the one for whose death an action was brought.
It may be observed that the phrase, “A railroad track is a sign of danger,” has been repeated so frequently as to become a slogan, perhaps properly so; but this does not mean that a railroad track is a sign that a train is approaching so near that it would be dangerous for one to cross. Perhaps no more than a small fraction of a 24-hour period is consumed by a train in such a position. The track is a sign that one approaching it with the intention of crossing it should use due care to avoid danger to himself and any other occupants of his vehicle, as well as danger to the vehicle. What is due care in any particular case depends upon the circumstances disclosed by the pleadings and shown by the evidence. The petition discloses that this crossing was a more dangerous one than a crossing of one track at right angles with nothing to obscure the view. Here were three tracks, two for through trains, with boxcars on a sidetrack which obscured the view of an approaching train for more than a quarter of a mile on one side of the crossing, and on the other side for a distance apparently longer. The space between the sidetrack and the main tracks was not sufficient to enable the driver to cross the sidetrack and stop and look for a train upon the main tracks before attempting to cross them. This situation naturally imposed a greater duty upon plaintiff’s driver to exercise due care. He was not, however, required to anticipate negligence of defendant in not having the whistle blown on its engine the distance away from the crossing the statute requires such a1 whistle to be blown. It was alleged in the petition that was not done, and by its answer defendant concedes that for the purpose of the demurrer. From this petition there was no reason to assume that plaintiff’s driver was unfamiliar with his duties under the circumstances or that he neglected to perform them. His own personal safety and that of his small son who was with him, and *424the safety of his employer’s semitrailer truck and its load, if it was loaded, would naturally prompt him to vigilance. The evidence might justify a jury in finding that the speed of the train was such that the warning of the whistle, if given 80 rods away, would have been insufficient to have enabled him to cross the track in safety. In such a situation it would have been the duty of the defendant to have had some additional warning of an approaching train. Statutory signals of an approaching train are the minimum which should be given. It is well settled in the law that if they are inadequate others should be given. Perhaps due care on the part of the defendant required it to have some type of a wigwag, bell or gong at the crossing to indicate an approaching train. It is true plaintiff did not allege the absence of such a device, but the decisions indicate that without such an allegation the fact might have been shown in the evidence as one of the circumstances existing at the time and place of the accident'. But that point need not be decided here. It is mentioned simply as indicating the necessity of a trial in cases such as this so as to determine all the pertinent facts bearing on the negligence of defendant, or the contributory negligence of plaintiff.
Railroads constitute an important industry in this state, are beneficial to our people and necessary for them in the conduct of their business and should not be harassed by unfounded litigation. -We have also in this state much business transacted by motor-driven vehicles on highways, and the state, aided in certain particulars by the federal government, has expended large sums to construct and maintain highways which are used largely by motor vehicles. These highways necessarily cross railroad tracks. Our citizens who use the highways are entitled to have such crossings constructed and maintained in such a way that it is reasonably possible for them to be used with safety. When a collision between a motor vehicle and a train occurs at a crossing each party is entitled to a fair hearing upon the question of liability therefor.
Contributory negligence is a defense which plaintiff is not required to negative by his petition. Certainly he is not required to anticipate every possible item of conduct which might tend to show him negligent in some particular and negative each of them in his petition. If the allegations of plaintiff’s petition were construed favorably to him instead of against him I see no reason to *425say that the petition does not state a cause of action. The judgment of the trial court should be reversed.
Smith, J., concurs in the foregoing dissenting opinion. Parker, J., dissents.