(dissenting): With due respect for the views of the majority, whose opinion it fell to my lot to write, I must dissent from the disposition made of this case. It will, I fear, add confusion to the state of the law involved.
Under the evidence in this case, I do not see how we can consistently fail to apply the rule, repeatedly laid down in our decisions, that the driver of a car who does not correlate his speed with the clear and unobstructed distance ahead of him-, and who proceeds blindly not knowing what may be ahead of him, is guilty of contributory negligence as a matter of law. (Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317, L. R. A. 1917F 610; Chance v. Murry, 143 Kan. 476; 54 P. 2d 981 .and cases cited on page 478; Eldredge v. Sargent, 150 Kan.-824, 96 P. 2d 870; Berry v. Weeks, 146 Kan: 969, 73 P. 2d 1086; Slaton v. Union Electric Ry Co., 158 Kan. 132, 145 P. 2d 456; Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Wright v. Nat’l Mutual Cas. Co. 155 Kan. 728, 129 P. 2d 271; Haines v. Carroll, 126 Kan. 408, 267 Pac. 986; Jones v. Atchison, T. & S. F. Ry. Co., 129 Kan. 314, 282 Pac. 593; Goodman v. Wisby, 152 Kan. 341, 103 P. 2d 804; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P.2d 665; Leathers v. Dillon, 156 Kan. 132, 131 P. 2d 668; Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681). Many of .these cases were reviewed in the recent case of Towell v. Staley, 161 Kan. 127, 166 P. 2d 699, and particularly in the dissenting opinion by Mr. Justice Wedell. There- is no need now to cover the same ground again. Whether the inability to see ahead resulted from dust, smoke, fog, blinding lights dr other cause, the appli*292cation of the rule has been based on the same fundamental proposition that one who does not correlate his speed with the clear and unobstructed distance ahead, and proceeds without regard to possible harm to 'himself or to others on the highway, does so at his peril.
The court apparently draws some distinction between driving blindly into fog, smoke, dust, rain or snow, and continuing ahead when blinded by approaching lights. If we mean to establish an exception to the rule in the case of a driver blinded by approaching lights, I think we should forthrightly overrule our decisions where the rule has been applied to drivers proceeding when they could not see objects in their lane of traffic by reason of blinding lights of oncoming cars (notably Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131; and Harrison v. Travelers Mutual Cas. Co., supra).
I fully agree that the rule is not and should not b,e applicable to sudden or momentary blinding by approaching lights or to other sudden emergency for which the driver is not responsible. But under the evidence in this case, I find nothing to support the decision on that ground. In Towell v. Staley, supra, upon which appellee principally relies and which is cited in the majority opinion, a majority of the court felt that an interpretation of the evidence favorable to the plaintiff would support the view that he was suddenly or momentarily blinded. Three members of the court were unable to so construe the evidence. But assuming, as we do, the correctness of the majority’s interpretation of the evidence in that case) there was then a sound basis for saying that the question of plaintiff’s contributory negligence was one for the jury. But how, under the evidence in this case, can it be said that there was only a momentary or sudden blinding by the approaching lights? The road ahead was straight and substantially level. Appellee testified that he didn’t know how far away the car with the bright lights was but that the lights “just blinded me and I couldn’t see,” and that he'“kept calling for dimmers.” Appellee was traveling at about forty-five or fifty miles an hour. When, in spite of repeated signals, the driver of the approaching car failed to dim his lights, the appellee did “slow down some” — he “didn’t know how much.” At any rate, immediately upon passing the approaching car, he saw the truck for the first time. It was then forty-five or fifty feet ahead of him. The lane to the left of the truck was clear. But appellee’s speed was then such that in spite of the fact that he had good brakes *293and applied them immediately and skidded his car for at least forty-five feet, he ran squarely into the truck with such force that “the front end was practically demolished.”
Certainly, as stated in the majority opinion, it may seldom be the duty of a driver actually to stop his car, because of bright lights which interfere with clear vision ahead. But is he any more justified in proceeding at an unsafe speed, against blinding lights, than he would be in proceeding in fog, or smoke, or dust, at a dangerous speed, when he cannot see the highway ahead of him? Is thfe rule to be held inapplicable to blind driving against blinding lights simply because blinding lights are more often encountered than fog or dust or other such causes which obscure the road ahead? Certainly such a quantitative distinction would disregard the basis upon which the rule rests.
Again, I agree fully that the whole situation must be viewed from a practical, a realistic standpoint. So viewed, I say — if the general rule is -to have any logical validity — that a driver who is so blinded by approaching lights that he can see nothing ahead of him, must proceed, if at all, with great caution. To do so may considerably delay a traveler from Topeka to Kansas City — to borrow an illustration suggested in Anderson v. Thompson, cited in the majority opinion — in reaching his destination. But if he does not do so, he may never get to Kansas City! And it is of still greater importance that he exercise such caution — the caution of ordinary prudence — out of regard for the safety of others who may be lawfully traveling or unavoidably stalled in the traffic lane ahead of him. Had innocent parties been killed or injured by appellee’s headlong driving in this case, I cannot imagine our saying that it would constitute a defense on the part of appellee for him to say that being blinded by approaching lights, so that he could see nothing ahead of him, he repeatedly called for dimmers, and the lights not being dimmed, he then proceeded blindly at such a speed that when the stalled car suddenly loomed up forty or fifty feet ahead of him,, he could not avoid the collision.
The court refers in the opinion to the requirement as to red lights on the rear end of motor vehicles, to the requirement that when a truck becomes stalled on a highway at night, flares must be placed at specified distances from the truck, and to th'e statutory requirement that drivers of approaching cars must dim their lights. These requirements, not questioned, relate to negligence of *294the track driver or of the driver of the approaching car. I do not' see their pertinence in determining whether the plaintiff was guilty, under the undisputed testimony, of negligence as a matter of law. By fusing these questions, when the only issue before us relates to plaintiff’s contributory negligence, we seem to move, without saying so, toward the doctrine of comparative negligence. There ’is something — perhaps much — to be said for that doctrine, followed in some jurisdictions. But the doctrine has been repeatedly rejected by this court. There may be reason to review our position in the matter. If so, let us do so directly.
There are those who believe that in the cases above cited, and perhaps others, this court has gone too far in holding that blind driving may constitute contributory negligence as a matter of law. They would in all cases leave such questions to the jury. Others believe just as strongly that the ends of justice are served by retaining this rule of law in the hands of trial judges and for appellate review. They support that view by very realistic considerations.’ However, I express no opposition to a broad reexamination of the whole question., In my opinion, the decision in this case throws no helpful light upon it.
Wedell, J., joins in the foregoing dissenting opinion.