dissenting.
I respectfully dissent from the majority opinion.
The cab driver was called on a direct wire to come to the Denver-Chicago office. He did so and came to the place requested. The evidence that the company dispatcher had ordered other cab drivers not to enter the yard at prior times does not necessarily show that this cab driver had been so instructed or make him negligent. The space in which he parked was not one that *557would be used by any of Denver-Chicago’s trucks at that late hour of the night. If the cab driver had any duty to anticipate that the truck would move, under these facts it would be logical and reasonable to assume that the truck would move forward, not backwards, where it had no reason, and very little distance it could go.
I also cannot subscribe to the theory that the posting of no trespassing signs by Denver-Chicago means that Publix could not enter on business when called to do so as happened here. This is particularly true in view of my comment above relating to absence of testimony showing that this driver had been warned not to do so.
True it is that a carrier owes the highest degree of care to its passengers, both in loading and unloading, as well as in traveling. That does not mean, however, that the carrier is an insurer of all persons coming in contact with its vehicle regardless of the circumstances. It “should not be charged with negligence without some proof of knowledge of the danger to be apprehended. No one can be required to guard, against a danger which neither they nor the injured party supposed to exist.” Fairmount Cemetery Assoc. v. Davis (1894), 4 Colo. App. 570, 36 Pac. 911.
The mere happening of the accident under the facts here presented does not raise an inference of negligence on the part of Publix as in res ipsa loquitur cases. Negligence is never presumed. I repeat, the happening of an accident carries no inference of negligence. Perry Lumber Co. v. Ruybal (1956), 133 Colo. 502, 297 P. (2d) 531.
Fessler, who was probably more familiar with the dock area than the cab driver evidently anticipated no danger, however, that would not excuse the cab driver if he should have seen he was stopping in a dangerous position. To say that this cab driver was negligent under these facts is to say that he should not have responded to the call, or having done so should not have driven to the exact location where it was intended and expected he would drive to pick up his passenger.
*558In Jacobsen v. McGinniss (1957), 135 Colo. 357, 311 P. (2d) 696, this court disposed of a contention similar to Fessler’s when it said:
“To say that in such circumstances Jacobsen was contributorily negligent would be to say that he should not have been on the road at that time in the morning, or better still, should have stayed at home.”
I think the conclusion inescapable from the undisputed facts disclosed by this record that the sole and proximate cause of the accident and the resulting injury to the plaintiff was the action of the driver of Denver-Chicago in negligently backing the truck into the cab without warning of any kind. Publix was nothing more than the passive intermediate instrument through which Denver-Chicago, by the negligence of its servant, inflicted injury upon the plaintiff.
Though plaintiff here was going to his hotel after checking in from his truck run, he was still in employee’s status, thus his injuries arose out of and in the course of his employment. See Alexander Film Co. v. Industrial Commission (1957), 136 Colo. 486, 319 P. (2d) 1047, and Lyttle v. State Compensation Insurance Fund (1958), 137 Colo. 212, 322 P. (2d) 1049. This would not prevent him though from suing third parties like Publix for alleged negligence. In this connection even if the judgment against Publix were justified I believe the majority decision would still be erroneous in not permitting an action over against Fessler’s employer whose active negligence resulted in the accident. See Baugh v. Rogers (1944), 24 Cal. 2d 200, 148 Pac. (2d) 633, and 101 C.J.S. 455, Sec. 982 b. and c. for a discussion of the division of authority on this point.
I would reverse the judgment against Publix in favor of plaintiff and remand that cause with directions to dismiss the complaint. I would also reverse the judgment dismissing the third party complaint of Publix against Denver-Chicago with directions that it be reinstated to permit Publix to prove its damage for injury to and loss *559of use of its cab resulting from the negligence of Denver-Chicago.
Mr. Chief Justice Knauss has authorized me to state that he joins in this dissent.