(concurring specially in the main opinion of CALLISTER, J.).
*205I join specially with the main opinion, and doing so feel inclined to make some observations about the dissent of my learned colleague, Mr. Justice CROCKETT. I question the statement in the dissent that the negligence of the two truck drivers was not the same.
Both truck drivers drove the same kind of vehicle. One was equally as cognizant, not only of the rules of the road, but with respect to statutory interdictions anent putting out flares. The jury, as to both drivers, answered the same interrogatory with respect to putting out flares. In the one case it answered that failure to do so proximately caused, Stone’s injury, but that Sheffy’s failure to do so, did not proximately cause his injury. Both drivers being charged with the same duty of care, the jury’s answers were completely inconsistent. In fact, in the opinion of this writer, it seems more reasonable to have held Sheffy to a greater degree of care, since the truck driver who was doing the same thing as the other, to-wit, trying to get the stalled truck started, deliberately placed himself out on the highzmy itself, in a place of greater danger than the one who was in his truck. No one in logic or reason, could say that had he been working on his ozvn truck, in the same place, that a jury consistently could have found that his working beside his truck without putting out flares would not be actionable negligence, but that if he were working inside the truck without putting out flares he would be guilty of such negligence. Operators of like equipment, both had the duty to put out flares as a warning of their presence on the highway, whether in or out of the vehicle.
The dissent errs when it attempts to refine and differentiate between the two types of negligence on the part of the two drivers, by saying the negligence of one started in point of time ahead of the negligence of the other. At time of the collision it made no difference when the two negli-gences started, if they were of the same type, concurring at the same time. Reasoning that the negligence of Sheffy came later and consisted of exposing himself to danger under the conditions created by Stone makes a difference in responsibility, does not conform to any syllogistic reasoning where the two drivers simultaneously were doing the same thing at the same place, except that one was in and one was out of the truck. It is suggested also in the dissent that there was negligence on the part of Stone for running out of gas, causing his truck to stall in a dangerous position on the highway. The jury disagreed with such conclusion, when it found, in answer to an interrogatory, that the truck was not mispositioned.
It is further difficult to understand how the dissent concedes that the questions put *206to the jury provide a plausible basis to argue that Sheffy was found guilty of the same negligence as was Stone, and that inasmuch as they were positioned together when injured, the finding of proximate cause logically should have been the same, —only to destroy such concession and argument, by the easy and untenable statement that it is not so because of “correct principles applicable to review on appeal.”
The dissent further generalizes that “it appears most reasonable to believe that the jury would have regarded the questions * * * simply whether 'he exposed himself to danger * * *, and not as requiring an answer as to whether he was negligent in' connection with the placement of the truck, or the failure to have lights on it, or to place flares.” Under the facts of this case the quoted statement reflects.its own fallacy. If the jury felt that way about it why didn’t they refuse to answer the “placing of flares” question as to Sheffy, and why did they deliberately and unanimously answer that question?
The dissent indicates that a further consideration bearing on this problem is the fact that the duties in regard to the mis-position of the truck (which the jury said was not mispositioned) and nonplacement of flares fell upon Stone, and therefore any blame for such misdeeds was his. To justify such statement the dissent volunteers presumably, in review, of-the facts given to the jury, that Sheffy had no duty to set out the flares. The trial court did not subscribe to such “as a matter of law” statement, nor does this writer. For this court to say that under the facts, and as a matter of law, Sheffy had no duty to put out flares, thus precipitating a nonjury issue of fact, establishes a dangerous precedent to the effect that where one truck driver helps another stalled on the highway, as a matter of law he would be insulated against any charge of negligence where no flares are put out by him or anyone else.
Most of the dissent is not only conjecture, but is conjecture as to what the jury may have conjectured. Repeatedly we have said not even the jury can do that, much less this court. In this connection, the dissent having indulged conjecture as to what the jury could or may have believed, its statement that consistency “has been referred to as a jewel” hardly is consonant with its inconsistent assertion that “It is not properly within the province of this court to look behind the verdict and speculate as to the process by which the jury arrived at it.”
I am of the opinion that the case should be sent back for a new trial as to Sheffy’s claim.