dissenting: In my opinion, the plaintiff (appellee) was guilty of contributory negligence as a matter of law.
The only material question presented by this appeal is:
“Did the plaintiff have his auto under control for whatever he might encounter at the intersection while approaching and entering said intersection?”
This is the third question requested for submission to the jury by the defendant (appellant).
The plaintiff by his own testimony admitted that he had traveled the road where the collision occurred “lots of times”; and was familiar with the road and the intersection where the accident occurred; that on the southeast corner of the intersection there was tall feed and some weeds in the ditch; that he was familiar with the sorgo crop growing in the field on the southeast corner of the intersection; and that he could not see the road to the south; that a driver in his position would have to be 10 feet back of the intersection before he could see down the road 400 feet to the south; that he knew this was a hazardous and dangerous intersection; that he was traveling 30 to 35 miles per hour as he approached the intersection, and when he was 40 feet from the intersection he looked to the south and could see the tall feed, weeds and some of the county highway 40 feet to the south; that he continued toward the intersection; that he slowed down to approximately 10 or 15 miles per hour; that the second time he looked to the south he was about 5 or 10 feet from the intersection and saw the defendant’s automobile approaching approximately 150 feet to the south; and that after he saw the defendant’s automobile approaching he continued on across the *167highway thinking he had “plenty of time to make it.” He further admitted that he did not look at the vehicle coming from the south in such a way as to determine the rate of speed it was traveling, and he “wouldn’t know how fast it was going.” He further testified that he did not apply his brakes or turn to the right when there was nothing to keep him from so doing; and that when he entered the intersection his hands were on the steering wheel where they remained until the time of the impact. He further stated his right foot was on the gas throttle and it remained there until the time of the collision.
In my opinion, these admissions by the plaintiff fall within the facts and the rules stated in Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084. The rules for testing the sufficiency of the evidence on a demurrer do not overcome the overriding effect of admissions made by a party. (Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765.) In Green v. Higbee, supra, Syllabus ¶ 5 reads:
“Where the only evidence involved consists of admissions by a party which plainly convict him of negligence which contributed to an injury advantage may be taken thereof by demurrer.”
In my opinion, the plaintiff did not have his vehicle under control at the time he made his first effective glance to the south which disclosed the presence of the defendant’s vehicle. This glance was destined to be a futile one because he had passed beyond the point of control when he first saw the plaintiff's vehicle. This situation was presented in Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783. There, as here, the plaintiff was approaching the intersection from the right and had entered the intersection first. In the opinion the court said:
“The appellant did not look to the south and ascertain the presence of the appellee’s vehicle until he was 25 or 30 feet from the center of the intersection in question. This would place him 10 or 15 feet from the edge of the intersection. Traveling at approximately 20 miles per hour an automobile with good tires and good brakes on a smooth, dry brick surface would require in excess of a total of 44 feet to stop. (See, Orr v. Hensy, 158 Kan. 303, 310, 147 P. 2d 749.) The foregoing evidence was supplied either by the appellant or the appellant’s witness, a police officer. It is obvious when the appellant first looked to the south and ascertained the appellee’s presence, it was too late to enter the intersection with his vehicle under control. His automobile would have been from 14 to 19 feet beyond the center of the intersection before he could have stopped, if his brakes had been simultaneously applied when he first saw the appellee. Therefore, the appellant’s first effective glance was destined to be a futile one. He had passed beyond the point of control *168when he first saw the appellee’s vehicle. Contributory negligence is established the instant the driver of a motor vehicle fails to maintain a proper lookout, and it bars him as a plaintiff from recovery. The appellant was bound to use reasonable care to avoid a collision and is presumed in law to have seen that which he could have seen had he kept a proper lookout. . . .” (p. 49.)
It is therefore respectfully submitted that the trial court erred in overruling the demurrer to the defendant’s evidence and in overruling the motion for a directed verdict at the close of all the evidence.
The factual situation presented in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, in my opinion, is distinguishable on the ground that there the plaintiff kept a constant vigilance for the approach of vehicles at a blind intersection and proceeded into the intersection with such caution as was felt sufficient, at least, for submission to a jury.
Assuming the foregoing question was one which should properly have been submitted to a jury for determination, the trial court, in my opinion, committed reversible error in refusing to submit the foregoing requested special question to the jury. All of the special questions requested by the defendant for submission to the jury, except the third question as heretofore quoted, could be answered adversely to the plaintiff from the admissions made by the plaintiff in his testimony. Therefore, the trial court was justified in the exercise of its power of discretion in refusing to submit these special questions to the jury. They could be labeled as an attempt to cross-examine the jury on fire evidence. On this state of the facts these points became the subject of instructions to the jury. But question No. 3 did not fall in this category, and it was an ultimate fact to be determined by the jury. The case of Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125, accumulates and reviews the cases on this point and defines an ultimate fact — a fact which is the subject of a special verdict. Whether the plaintiff had his vehicle under control as he entered the intersection, when he first observed the approach of the defendant’s vehicle, was a controverted issue of fact framed by the pleadings in this case. It related directly to the contributory negligence of the plaintiff.
G. S. 1949, 60-2918 reads in part as follows:
“The verdict of a jury is either general or special. ... A special verdict is that by which the jury finds facts only. It must present tire facts as established by the evidence, and not the evidence to prove them; and they must be so presented that nothing remains to the court but to draw from them *169conclusions of law. In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same: Provided, That no one party shall in any case be entitled as a matter of right to request more than ten such special questions but the court may in its discretion allow more than ten special questions. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.” (Emphasis added.)
It may be conceded that the trial court has a wide discretion in the submission of special questions to a jury (Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900; and Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323); that it may refuse to submit special questions which are not pertinent to the issues, or which are designed to require the jury to recapitulate the evidence and cross-examine them (Finke v. Lemle, 173 Kan. 792, 252 P. 2d 869); that it may refuse to submit questions which are immaterial to a decision of the case (Loveless v. Ott, 121 Kan. 728, 736, 250 Pac. 324); that it may refuse to submit special questions which cannot be answered from the evidence (Bothe v. True, 103 Kan. 562, 175 Pac. 395); that it is not required to submit more than ten special questions requested by a party (Alliston v. Shell Petroleum Corp., 143 Kan. 327, 343, 55 P. 2d 396; and Hamilton v. Lanoue, 145 Kan. 768, 774, 67 P. 2d 574); and that it may refuse to give special questions which are in substance covered by other questions submitted (Moseman v. Penwell Undertaking Co., 151 Kan. 610, 618, 100 P. 2d 669); but it is reversible error for a trial court to refuse to submit special questions, which are properly framed, when requested by a party, provided the questions do not exceed ten in number, they are material to the issues framed by the pleadings, and they are directed to ultimate facts upon issues controverted by the evidence. (G. S. 1949, 60-2918; A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 180, 42 Pac. 722; and Gates v. Western Casualty & Surety Co., 153 Kan. 469, 475, 112 P. 2d 106; see, also, Colin v. DeCoursey Cream Co., 162 Kan. 683, 178 P. 2d 690; Earhart v. Tretbar, 148 Kan. 42, 80 P. 2d 4; Davidson v. Douglass, 129 Kan. 766, 770, 284 Pac. 427; Francis v. Brock, 80 Kan. 100, 102 Pac. 472; Koehn v. Central National Ins. Co., 187 Kan. 192, 205, 354 P. 2d 352; 53 Am. Jur., Trial, § 1065, p. 737; and § 1068, p. 739.)
The specific grounds of plaintiff’s contributory negligence alleged in the defendant’s answer, which were denied by the plaintiff, are (1) failure to keep a proper lookout for other automobiles *170and in particular the defendant’s automobile upon the highway and within the intersection; (2) failure to keep his automobile under reasonable control; (3) failure of the plaintiff to give any warning of his presence to the other vehicles upon the highway; (4) failure to operate his automobile in a careful and prudent manner; (5) failure and neglect to stop or turn his automobile aside in order to have avoided the collision; and (6) operating his automobile at such a high rate of speed he was unable to maintain control of the same.
Whether the plaintiff had his vehicle under control as he entered the intersection was a controverted issue of fact under the evidence, and the special question on this point was properly framed.
Whether the plaintiff was negligent, and whether such negligence was a proximate cause of the collision, are conclusions to be drawn from the ultimate facts, and cannot be said to elicit from the jury the determination of an ultimate fact. (Nordman v. Johnson, supra.)
In Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, the plaintiff was on the right and had entered the intersection first. When he first saw the defendant’s vehicle he did not judge its speed or make any effort to do so. This was considered to be negligence under the circumstances there presented.
It is respectfully submitted, if it was proper for the jury to determine this case, the trial court should be reversed and a new trial granted.
Price, J., joins in the foregoing dissenting opinion.