dissenting. This is a fact case and should not be reversed or remanded on the issue of damages only. If the verdict, which was entered on special questions in favor of the defendant, was infected and therefore should be reversed, it is totally infected and invalid as to both the plaintiff and the defendant. A new trial in such case should be ordered on all issues. Defendant won the case all the way in the trial court on special questions approved by both attorneys. The jury found the plaintiff-appellant guilty of contributory negligence which was a proximate cause of the accident *454and set forth the amount of damages in money which the plaintiff suffered as “$NONE”.
Although the jury found plaintiff negligent in four out of the seven possible questions on negligence submitted, it is true the jury did find defendant negligent in one particular, i. e., following another vehicle (not the plaintiff’s vehicle) more closely than reasonable and prudent. However, after winning a total verdict before the jury, defendant comes away from this court with a verdict of liability against her and is subjected to a new trial ón the issue of damages only. When the majority opinion is handed down by this court it will come as quite a shock to the defendant-appellee.
This court has repeatedly held a new trial on the issue of damages only should not be granted when there appears a strong suspicion that inadequate damages were awarded as a compromise on the issues of liability and damages. Such a compromise infects the entire verdict of the jury and renders it totally invalid. See Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522, and Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112, as typical cases.
I do not question that in those few inadequate-damage cases where the evidence and the verdict clearly establishes the defendant’s negligence and absolves the plaintiff of contributory negligence this court can and has reversed the judgment and remanded the case for a new trial on the issue of damages only. See Hallett v. Stone, 216 Kan. 568, 534 P. 2d 232.
However, I find no case where this or any other appellate court has disapproved a jury verdict on the issue of plaintiff’s negligence and approved that verdict as to defendant’s negligence when there was conflicting evidence introduced at the trial which would support negligence as to both parties.
As stated in Allen v. Ellis, 191 Kan. 311, 316, 380 P. 2d 408, the main object of special questions is to bring out the various facts separately in order to enable the court to apply the law correctly and to guard against any misapplication of the law by the jury.
In the present case the jury correctly answered the questions as they evaluated the evidence and assessed the credibility of the witnesses. Their answers were consistent with the law. A plaintiff who is found to be negligent and whose negligence is found to be a proximate cause of the accident is not entitled to recover damages from a negligent defendant. The jury by answers to special questions so found.
*455The use of special questions is a method to test the jury’s application of the law in the instructions to the facts found from the evidence. The use of special questions should not be used to separate the findings and change a verdict at the trial level in favor of the defendant to a verdict in favor of the plaintiff at the appellate level. Neither party objected to any of the special questions submitted by the court. In fact the record indicates all questions were approved by the parties. The verdict entered thereon and approved by the trial court was either all wrong, in which case a new trial should be granted on all issues, or it was all right and should be affirmed.
Now let us turn to one of the findings of the jury on which plaintiff was found negligent. The jury found plaintiff was contributorily negligent “In obstructing the traveled way of the highway and creating a situation of peril which this defendant could not guard against.”
As stated in Guerra v. Jaeger, 204 Kan. 309, Syl. 3, 461 P. 2d 737, and recently followed in Simpson v. Davis, 219 Kan. 584, 549 P. 2d 950, contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is the legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm. What constitutes contributory negligence is generally a question of fact for the jury. It cannot be equated to violating some traffic law.
The majority opinion attempts to circumvent the force and effect of the jury’s answer to the question relating to obstructing the traveled portion of the highway by discussing the statute, K. S. A. 8-570 (a) (Corrick 1964) which prohibits a motorist from stopping or parking his vehicle upon the paved portion of a highway outside of a business or residence district. We note that stopping on the traveled portion of a highway for the purpose of making a left turn is not one of the compelled stops permitted under sub-section (b) of this statute. This court has never held, before today, that a motorist on a 70 mile per hour highway outside a business or residence district may stop his vehicle in the only northbound lane of traffic thus blocking the traveled portion of the highway. The case of Smith v. Engel, 206 Kan. 298, 477 P. 2d 937, cited by the *456majority, arose from an accident within the business and residential district of the city and the statute does not prevent stopping in such an area. The same is true of the location of the accident in Hallett v. Stone, supra.
Our holding today appears to be in direct contradiction to what was said in Applegate v. Home Oil Co., 182 Kan. 655, 324 P. 2d 203. There it was said:
“. . . The special finding established there was no excuse for parking on the highway; that a reasonably prudent driver would not have stopped the truck where it was stopped but would have sought a safer place. The stop was not a compelled stop as authorized by G. S. 1949, 8-570 (b), and Walton’s improper parking constituted negligence as a matter of law. . . .” (p. 663.)
The prohibition against stopping on a through high-speed highway is for the protection of those using the highway. The stopped vehicle creates an unexpected hazard. I see little difference between stopping temporarily to check the tires or brakes and stopping to wait for the opportunity to make a left turn. Both create hazards.
In our present case, assuming that the plaintiff was violating no traffic laws, he still had a duty under the attending circumstances to comply with this fictional standard to which a reasonable man should conform in order to protect himself from harm. Considering that plaintiff stopped his car in the traveled portion of the single northbound lane of a 70 mile per hour country highway, 22 feet wide, just 350 feet after topping a rise; considering further that the time of day was 6:10 p. m. on a weekday when traffic to and from Topeka was exceptionally heavy and it was raining; and considering further that three persons coming from the south testified there were no turn signals visible on his stopped car — should this court overturn the jury’s finding and hold he was not negligent as a matter of law? I think the answer is obviously no.
I do earnestly urge the majority of this court to consider the effect of their holding with regard to K. S. A. 8-570 (a) (Corrick 1964) which is now K. S. A. 8-1569, and remains substantially unchanged. The opinion as written lightly disposes of the application of the statute to stopping for a left turn without considering subsection (b) which refers to compelled stops. The decision seems to be based entirely on cases which have previously recognized that the statute does not apply in business or residence districts. The majority opinion states, “. . . We do not believe *457this statute was ever meant to be applied to a motorist who temporarily stops his vehicle on the roadway for the purpose of making a legal left turn, and we so hold.” This statement is made without considering that portion of the statute which prohibits stopping “. . . when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least twenty feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles . . .” Neither does the court consider the situations in which the law has been applied and considered by this court. (See 21 case annotations following K. S. A. 8-570 [repealed] [Weeks 1975].)
Before concluding this dissent I want to discuss two cases relied on by the majority in support of their holding. The first is Hallett v. Stone, supra. In Hallett the accident occurred on a city street where speed is controlled and turns at intersections are commonplace. There is no prohibition in the statute (K. S. A. 8-570 [a], supra) against stopping in the traveled portion of such a road or highway. The prohibition is specifically excepted within a business and residence district. Hallett is not controlling. The proposition we found controlling in Hallett is stated as follows:
“. . . A verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party. [Citations omitted.]” (p.575.)
The negligence of defendant was determined in Hallett as a matter of law on the admissions made by the defendant which were uncontradicted. In contrast there are no admissions of negligence in this case by either party and there is conflicting evidence which should be left to a jury.
The second case needing comment is cited by the majority to support the principle that a person who stops his car on a highway is not guilty of negligence. That case is Smith v. Engel, supra. In Smith, as pointed out in the concurring opinion, the accident occurred in a business district adjacent to the city. The defendant was stopped in a crossover or break in the median strip which was provided for the purpose of permitting motorists to wait for a break in traffic so they could cross over to the other side of the *458street. No question was presented on appeal in Smith as to the negligent acts of the driver of the car which rear ended the car in the crossover lane. The facts and circumstances of that case are entirely dissimilar and it lends very little support to the holding in the present case. The sole question there decided was “what constitutes a genuine issue as to any material fact” when a motion for summary judgment in favor of defendants has been sustained by a trial court.
The jury in the present case after listening to the witnesses found that both plaintiff and defendant were negligent and returned a verdict in favor of defendant which was approved by the trial court. This is essentially a fact case and should be affirmed on appeal.
Kaul, J., joins in the foregoing dissenting opinion.