(dissenting): I am unable to agree with the majority of the court, and I will attempt to set forth my views briefly on the questions concerning which I differ. The rule of law is well established in this and other jurisdictions that in testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross examination, and if so considered, there is any evidence which supports or tends to support plaintiff’s case on any theory, the demurrer should be overruled. A few of our more recent cases adhering to this rule are: McCracken v. Stewart, 170 Kan. 129, Syl. ¶ 1, 223 P. 2d 963; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; Blankenship v. Fraker, 173 Kan. 438, 439, 249 P. 2d 683; Revell v. Bennett, 162 Kan. 345, Syl. ¶ 1, 176 P. 2d 538; Huggins v. Kansas Power and Light Co., 164 Kan. 27, 187 P. 2d 491; Gabel v. Hanby, 165 Kan. 116, Syl. ¶ 1, 193 P. 2d 239; Samms v. Regier, 167 Kan. 556, 207 P. 2d 414; Hukle v. Kimble, 169 Kan. 438, 441, 219 P. 2d 434; Schneider v. Stewart, 170 Kan. 158, 163, 223 P. 2d 698; Cain v. Steely, 173 Kan. 866, Syl. ¶ 3, 252 P. 2d 909; Siegrist v. Wheeler, 175 Kan. 11, Syl. ¶ 1, 259 P. 2d 223; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923. Other cases holding to the same effect may be found in 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 151, and West’s Kansas Digest, Trial, § 156(2) and (3).
It is also a well-established rule in this state as well as in other jurisdictions that in determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be submitted to the jury if the facts of record are such that reason*612able minds, in tbe exercise of fair and impartial judgment, might reach different conclusions thereon. Moreover, the question whether a negligent act is the proximate cause of an injury, and whether an ordinarily reasonable, prudent man would have seen that injury might have occurred as a result of a negligent act, is also a question of fact for the jury. My views are best expressed in the opinion in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 49, 204 P. 2d 752, wherein Mr. Chief Justice Harvey, speaking for this court stated:
“The legal questions here involved are so well settled in our law that they need not be labored. The actions were ones at common law in which plaintiffs sought damages alleged to have resulted from defendant’s negligence, and defendant had pleaded contributory negligence of the plaintiffs. These are the kinds of actions in which each party is entitled to a trial by jury as a matter of right. They should not be converted into trials by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established. Before the court should make such a holding the evidence should be so clear that reasonable minds, considering it, could have but one opinion, namely, that the party was negligent. In these cases we think the contributory negligence of plaintiffs was clearly a question of fact for the jury. More than that, plaintiffs were not required to anticipate drat with their ear in the intersection defendant’s bus would be driven into it and against their car at a speed of twenty-live to thirty miles per hour, with its driver not watching enough to know that the car was in the intersection. Under the evidence the jury might very well have found such acts of defendant to be the proximate cause of the injury.” (Our italics.)
This reasoning has been reasserted and cited with approval in Blankenship v. Fraker, 173 Kan. 438, 441, 249 P. 2d 683; Cain v. Steely, 173 Kan. 866, 873, 252 P. 2d 909; Fry v. Cadle, 171 Kan. 14, 17, 229 P. 2d 724; Siegrist v. Wheeler, 175 Kan. 11, 15, 259 P. 2d 223; Thompson v. Barnette, 170 Kan. 384, 387, 227 P. 2d 120, and Samms v. Regier, 167 Kan. 556, 207 P. 2d 414. We said in Mehl v. Carter, 171 Kan. 597, 237 P. 2d 240:
“The question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury.” (Syl. f 3.)
See, also, Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296. Many other cases of like effect may be found in 4 Hatcher’s Kansas Digest [Rev. Ed.], Negligence, §§ 72 to 75, inch, and West’s Kansas Digest, Negligence, § 136(9), (14), (25) and (26).
The right of every individual citizen to a trial by jury is of ancient origin, and as now practiced is the result of a long process of de*613velopment. Having early been regarded as a right, it was in England first guaranteed as such by the Magna Charta. It was introduced in this country by the English colonists who considered it a right under the English law, and is regarded as a basic and fundamental feature of American jurisprudence, and has since the organization of our government been incorporated in the form of expressed guaranties in the constitutions of both state and federal governments. It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements (50 C. J. S., Juries, 722) and, as stated, a trial court in the exercise of its prerogatives in determining questions of law, only, in these kinds of cases should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact. Instances are relatively rare when facts are such that the court should say as a matter of law negligence alleged has been established. Juries today are composed of men and women of standing in the communities. They are farmers, merchants, bankers, engineers, industrialists, laborers, professional tradesmen, businessmen of all kinds and citizens from all walks of life, a real cross-section of citizens of the communities. A vast majority of these people are very well educated and experienced in all phases of life, and are well able to justly pass upon the facts in any given lawsuit between the litigants.
Much is made of the fact that the plaintifE entered the intersection in question at the speed of forty to forty-five miles an hour, and that it was an excessive speed under the circumstances. Who is to determine, under the conditions of this intersection, what speed would have been a proper speed? Should it have been thirty, twenty, or ten miles per hour, or should the plaintiff have stopped his automobile to ascertain whether anyone was approaching from the township road and, if his speed constituted negligence, was it one of the proximate causes of the collision? It appears to me that these were questions to be determined by the jury. Since present day traffic on the highways has become so extensive, can it be said as a matter of law that one should be required upon approaching an intersection of a township road to slow his car to a crawl, or stop, in the absence of highway slow or stop signs, to ascertain whether others using the highway would obey the law of the road? I think not. Actions of this kind present questions of fact upon which reasonable minds might reach different conclusions, and should be *614submitted to the jury for their determination under proper instructions from the court.
I am of the opinion that the judgment of the trial court should be reversed and a new trial ordered.
Harvey, C. J., and Smith, J., join in the foregoing dissent.