(concurring specially): I concur in the decision of the majority and have no criticism of the opinion as written. However, I wish to supplement that opinion.
■ The general rule prevailing in this jurisdiction is that when a driver of a motor vehicle on a public highway is on his proper side of the road he has a right to presume the driver of a car approaching him from the opposite direction and on the lefthand or wrong side of the highway will get over on his proper side in time to avoid a collision, and, under such circumstances, does not have to anticipate that the driver of the other car will not do so. (Citing Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906.)
In Smith v. Salts, 170 Kan. 313, Syl. 1, 2, 224 P. 2d 1025, we held:
“Absent knowledge to the contrary a person has a right to assume the driver of a vehicle will observe the law of the road and turn to the proper side thereof when approaching another vehicle situated on its proper side of the road.
“Whether a person had knowledge the driver of a vehicle would not observe the law of the road, or in the exercise of reasonable diligence should have had such knowledge, presents a jury question whenever reasonable minds might differ on the subject.”
In Duncan v. Branson, 153 Kan. 344, 350, 110 P. 2d 789, it was said:
“Defendant next argues that plaintiff was guilty of contributory negligence so as to preclude recovery, and his demurrer to the plaintiff’s evidence should have been sustained. In the consideration of this argument we must give the evidence the most favorable consideration possible from the standpoint of the plaintiff. The plaintiff testified that he saw the light of the defendant’s car for *191the first time when it was about 450 feet east of him; that he was on the south side of the highway going about 25 miles an hour; that it looked as if it might be going to turn south and the next thing he knew it crashed into him; that he had not figured defendant was going to strike him until he ‘plowed right into him.’ There was evidence to the effect that defendant was driving on the wrong side of the highway. The foregoing was sufficient to make the question of whether plaintiff was guilty of contributory negligence one for the jury. The plaintiff was entitled to believe that the defendant would get back and remain on his own side of the highway as the cars approached each other. Had the car of defendant been on the proper side of the road at the time they met there would have been no collision. (See Balano v. Nafziger, 137 Kan. 513, 21 P. 2d 896; also, Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; also, McComas v. Clements, 137 Kan. 681, 21 P. 2d 895.)”
One is bound to anticipate and guard against what usually happens or is likely to happen, but it would impose too great a burden to be held responsible for guarding against what is unusual or unlikely to happen and what may be said to be only remotely or slightly probable. (Mehl v. Carter, 171 Kan. 597, 603, 237 P. 2d 240.)
It is a well-established rule in this state 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 reasonable minds, in the 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 and prudent man would have seen that injury might have occurred as the result of a negligent act is also a question for a jury.
In Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 485, 119 P. 2d 459, Mr. Chief Justice Dawson, speaking for this court, stated:
“It is argued that if plaintiff’s testimony was accurate and given credence by the jury, the collision could not have happened, and that his testimony convicted himself of contributory negligence. It was defendant’s privilege to press this line of argument on the attention of the jury, but it is beyond the province of an appellate court to sift the false or fallacious from the true, and deduce therefrom a conclusion that the jury’s function should be dispensed with, and that such a controverted issue of fact as contributory negligence should be ruled on as a matter of law. It is only in clear cases which require no subtleties of reasoning that contributory negligence becomes a matter of law. (Zumbrun v. City of Osawatomie, 130 Kan. 719, 288 Pac. 584; id., 135 Kan. 26, 10 P. 2d 3; Sponable v. Thomas, 139 Kan. 710, 719-721, 33 P. 2d 721; also cases cited in Hatcher’s Kan. Dig. 1623, and Supp. Dig. 375, 376.)”
The rule applicable to the instant case was stated in Lawrence *192v. 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 tiran that, plaintiffs were not required to anticipate that with their car in the intersection defendant’s bus would be driven into it and against their car at a speed of twenty-five 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.”
The reasoning and the rules in the mentioned cases have been reasserted and cited with approval in our most recent cases. (Thompson v. Barnette, 170 Kan. 384, 387, 227 P. 2d 120; Fry v. Cadle, 171 Kan. 14, 17, 229 P. 2d 724; Blankenship v. Fraker, 173 Kan. 438, 441, 249 P. 2d 683; Cain v. Steely, 173 Kan. 866, 873, 252 P. 2d 909; Siegrist v. Wheeler, 175 Kan. 11, 15, 259 P. 2d 223; Roehrman v. D. S. & O. Rural Electric Cooperative Ass’n, 178 Kan. 52, 60, 283 P. 2d 411.)
In Mehl v. Carter, 171 Kan. 597, Syl. 3, 237 P. 2d 240, we stated:
“The question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury.”
Mr. Justice Thiele, in speaking for this court, said in Rowell v. City of Wichita, 162 Kan. 294, Syl. 6, 176 P. 2d 590:
“The negligence charged must have been the proximate or legal cause of the injury, and what is the proximate cause is ordinarily a question for the jury.”
See also Emmerich v. Kansas City Public Service Co., 177 Kan. 443, 280 P. 2d 615; Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296.
Many other cases of like effect may be found in 4 Hatcher’s Kan. Dig. [Revised Edition], Negligence §§ 74, 75; and West’s Kan. Dig., Negligence, § 136 (9), (25), (26).
The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free *193people. A trial court, in the exercise of its prerogative 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. In the instant case, I am of the opinion that plaintiff’s evidence presented a situation where reasonable minds might differ as to just who was negligent and whose negligence, if any, was the proximate cause of the injury complained of, and hence was clearly a question to be presented to the jury.
Robb and Fatzek, JJ., concur in the foregoing specially concurring opinion.