dissenting: In my opinion the admitted facts in this case require reversal as a matter of law.
When the parties in this comparative negligence case are viewed in perspective, the real issues presented on appeal become relatively simple and well defined.
The appellants, Deere and Company and John Deere Industrial Equipment Company (Deere), through their local dealer, Capital Equipment, Inc., sold the crawler-tractor equipped with a hydraulically controlled bucket loader, but without a ROPS kit attached, to Power Constructors, Inc., the plaintiff s immediate employer.
Capital Equipment, Inc., settled out so their liability on appeal to this court is not an issue. Power Constructors, Inc., is covered by workers’ compensation thereby preventing the plaintiff from recovering damages in this action from his employer.
Therefore, it is only the issues concerning Deere that confront the Supreme Court on appeal.
What was Deere’s duty to warn when the crawler-traetor was sold to Power Constructors, Inc., in 1971? It was not equipped with a roll-over protective structure (ROPS), nor was it equipped with a seat belt. The warning then, if required, would be that a seat belt should not be used in operating the crawler-tractor. Obviously, under this state of the facts, there could be no *781negligence concerning warnings at the time of the sale and delivery to the purchaser; and there would be no liability of Deere at any time prior to installation of the ROPS kit, unless the court declares Deere to be an absolute insurer concerning the safety of one operating the machine.
How then in February 1973 can a subsequent sale and delivery of the ROPS kit by Capital Equipment, Inc., to the vendee, the plaintiffs employer — which plaintiffs employer installed— relate negligence back to Deere? Proper instructions for installation and warnings to the plaintiff s employer accompanied the ROPS kit. The fact that the seat belt upon installation may have been hidden from view under the seat of the crawler-tractor cannot be attributed to Deere. This was the act and the sole responsibility of Power Constructors, Inc., the plaintiffs immediate employer. Is the manufacturer required to give immaterial warnings to an eventual user of its equipment in the event alterations are made to the machine by others, long after sale and delivery of the machine? This cannot be the law if reason is to prevail.
The jury found Deere negligent “in failing to provide adequate warnings of hazards and risks involved in the use of the unit equipped with a ROPS without using a seat belt.”
Upon the evidence, this finding is absolutely inconsistent with the conceded facts and the controlling law which will be discussed later in my dissenting opinion.
Other matters of law addressed in the court’s opinion with which I cannot agree are the following:
First, in a series of automobile cases before the Kansas appellate courts, it has been held the failure to use an available seat belt is not to be considered as negligence when comparing fault. Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 711 P.2d 1330 (1985); Ratterree v. Bartlett, 238 Kan. 11, 18, 707 P.2d 1063 (1985), Hampton v. State Highway Commission, 209 Kan. 565, 579-81, 498 P.2d 236 (1972), Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981). This is in light of the fact the Kansas legislature requires every passenger car manufactured or assembled, after a certain date, to be equipped with seat belts. K.S.A. 8-1749. As the subject of seat belts relates to Kansas comparative negligence law, therefore, it is immaterial whether a seat belt is provided in an automobile because the driver or *782passenger has no legal duty, statutory or at common law, to use a seat belt. A fortiori, notice or warning by the manufacturer concerning the use of seat belts is irrelevant.
The court in Marshall v. Ford Motor Company, 446 F.2d 712 (10th Cir. 1971), stated the function of seat belts is a matter of common knowledge, and the court rejected the plaintiff/passenger’s argument that the car manufacturer had a duty to warn of the consequences of non-use of seat belts. If it has been held no duty to warn of non-use of seat belts exists in automobile cases where automobile travel is frequent and at a high rate of speed, how can the majority require such a duty in a case involving a crawler-tractor equipped with a loader where the equipment moves at an extremely slow rate of speed — three to four miles per hour — at a supervised construction site? What is the distinction in the danger involved? Automobiles travel at high rates of speed where the space between vehicles passing in opposite directions is frequently less than two feet. One need only be reminded of the number of highway accidents and the resulting death on our highways to conclude the danger in operating an automobile is far greater than the operation of a crawler-tractor at a very slow rate of speed under supervision at a construction site.
The fact this issue has to do with construction equipment, rather than an automobile, should not alter the applicability of the rationale found in the automobile cases, i.e., seat belts are commonplace, their function is common knowledge, and there is neither a duty to wear them nor to warn of the consequences in failing to wear them.
Just as certain cars must be equipped with seat belts, the Occupational Safety and Health Administration (OSHA) requires seat belts to be provided on crawler-tractors equipped with a ROPS. 29 C.F.R. § 1926.602 (1985). And as with automobiles, the user of the equipment has no duty to use an available seat belt. Under this theory it is unnecessary to consider plaintiff s claim that he did not know the seat belt was available. As in the automobile cases, even though a seat belt is required by law, under the doctrine of comparative negligence the availability of a seat belt is immaterial since the plaintiff has no legal duty to use it.
The manufacturers of automobiles and earth-moving equipment can do no more than provide the seat belt required by law. *783Whether that seat belt is used depends upon the personal choice of the occupant of the vehicle until the legislature mandates otherwise. It is unjust to penalize the defendant/manufacturer for failing to warn of the necessity to use a seat belt on a crawler-tractor with a ROPS when under the law, even if plaintiff/user had been warned, the plaintiff cannot be penalized under comparative negligence for failing to heed that warning.
Second, the majority refuse to recognize the general rule that there is no duty to warn of dangers actually known by the user of a product. Jones v. Hittle Service, Inc., 219 Kan. 627, 640, 549 P.2d 1383 (1976). See also Mayberry v. Akron Rubber Machinery Corp., 483 F. Supp. 407 (N.D. Okla. 1979) (no duty to warn members of profession against dangers known to members of that profession), 63 Am. Jur. 2d, Products Liability § 341. The following is plaintiff s testimony taken from the trial transcript where he admits he was familiar with seat belts and knew the risks involved in operating the crawler-tractor which is the subject of this action without wearing a seat belt.
“Q. Okay. And you worked for a Morton Building Company in which you operated a Ford tractor?
“A. That’s correct.
“Q. With a drilling rig that was attached to it?
“A. And a bucket on the front.
“Q. And that one had a roll-over protective structure; did it not?
“A. There were four crews at Morton Building at the time I worked there. There were several tractors. The old ones did not have, but the newer ones did.
“Q. And they all had seat belts?
“A. As near as I can recall, yes.
“Q. Okay. And, of course, you knew what a seat belt was for by that time; did you not, sir?
“A. Yes.
“Q. And if you saw a seat belt lying someplace, you knew what it was?
“A. Yes.
“Q. And knew how to use it?
“A. Yes.
“Q. And knew the possible consequences of not using it?
“A. Yes.
“Q. In the event of a tip over or if your — you had by that time, you had them in your own personal vehicle; did you not?
“A. Yes.
“Q. And used them for occupant protection in the event of a crash on the highway?
“A. That’s right.
“Q. Or a roll over; is that correct, sir?
*784“A. Yes.
“Q. Would it be fair to say, then, that by the time that you went to work for Power Constructors, that you were really no stranger to seat belts?
“A. That would be correct.
“Q. You knew exactly what they were for; did you?
"A. Yes.
“Q. And you knew exactly — you had a pretty good idea of what it would prevent?
"A. Yes.
“Q. And you had also a pretty good notion of what risks were involved if you used a vehicle without them?
“A. Yes.
“Q. And the seat belt, itself, just the seeing of it was a type of warning to you to know that it was there and something to be used?
MR. McATEE: Object, Your Honor, that presumes a fact not in evidence.
MR. PATTERSON: Well—
THE COURT: (Interrupting) Well, he is talking about seat belts that he would see, not necessarily a seat belt on the vehicle in question. That’s the way I interpret the question.
MR. PATTERSON: That was the question I intended to put. I hope I did.
“Q. (By Mr. Patterson) If you saw a seat belt, you knew what to do?
“A. I would use it, yes.
“Q. Right, And you really wouldn’t need a sign or a label to tell you to use it; would you?
“A. Not in the — if I saw it, no.
“Q. If it was there and it was visible and you saw it, you didn’t need a label to tell you what to do?
“A. No, sir.”
By his own admissions, plaintiff knew of the dangers. These admissions are binding and conclusive upon him if uncontradieted or unexplained. Hallett v. Stone, 216 Kan. 568, 575, 534 P.2d 232 (1975); Cipra v. Seeger, 215 Kan. 951, 954, 529 P.2d 130 (1974), Beams v. Werth, 200 Kan. 532, 547, 438 P.2d 957 (1968); Thomas v. Kansas City Southern Rly Co., 197 Kan. 747, 751, 421 P.2d 51 (1966); Schoof v. Byrd, 197 Kan. 38, 49, 415 P.2d 384 (1966); Bellport v. Harder, 196 Kan. 294, 300, 411 P.2d 725 (1966); Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 393, 399 P.2d 822 (1965); Hiniger v. Judy, 194 Kan. 155, 165, 398 P.2d 305 (1965).
Warnings that a seat belt should be used and the dangers involved for not using seat belts in this case are, therefore, immaterial as a matter of lato.
Here, the plaintiff revealed he had actual knowledge of the dangers involved if he failed to wear a seat belt. Plaintiffs testimony that he never saw a seat belt neither contradicts nor *785explains the admission that he knew the risks. Whether a seat belt is provided, in fact, does not affect one’s personal knowledge of what can happen if a seat belt is not worn.
In addition to plaintiffs admissions, the record reveals he was 22 years old at the time of the accident. He had previously operated a loader tractor at Morton Buildings where he was employed for a total of three years. The newer tractors at Morton Buildings were equipped with both a ROPS and seat belts. Plaintiff had been employed by Power Constructors, Inc., the owner of the crawler-tractor, for seven months prior to the accident. Power trained him on the crawler-tractor and he had operated it for four to six weeks. The local union had qualified plaintiff as a “first year operator.”
Plaintiff was an experienced and qualified user of a ROPS equipped crawler-tractor and admitted he knew the dangers of failure to wear a seat belt. The manufacturer has no duty to warn under these circumstances.
Finally, assuming arguendo that defendant had a duty to warn of the necessity to wear a seat belt in a ROPS equipped crawler-tractor, that duty was satisfied here when a warning was given to the purchaser of tire equipment, Power Constructors, Inc., plaintiffs employer.
When Power Constructors, Inc., initially bought the crawler-tractor, it was not equipped with a ROPS or a seat belt. The Operator’s Manual Deere provided contained the following warning:
“CAUTION: Under almost all operating conditions:
1. The use of a seat belt with the optional John Deere Canopy is recommended.
2. Use of a seat belt without roll-over protective equipment is not recommended.”
Later, Power Constructors, Inc., purchased from Capital Equipment, Inc., a ROPS kit complete with a seat belt. Upon delivery of the ROPS kit to Power Constructors, Inc., the shop foreman, an employee of Power, installed the ROPS and seatbelt assembly on the crawler-tractor. The installation instructions accompanying the kit contained the same warning as found in the operator’s manual and the seat belt provided the following warning:
*786“CAUTION: Under almost all operating conditions, belt should not be used on tractor which is not equipped with roll-over protection.”
The Supreme Court held in Younger v. Dow Corning Corporation, 202 Kan. 674, 682, 451 P.2d 177 (1969), the manufacturer of a potentially hazardous product who gives an adequate warning to the immediate vendee, an industrial user of the product, has no additional duties to warn the vendee’s employee of any dangers and is not liable to the employee in a negligence action for failure to do so.
The three different warnings provided by defendant to plaintiffs employer were adequate in this case. Taking into consideration the various different terrains encountered on job sites where the equipment could be used, the warnings were not vague. It is simply too burdensome to require the manufacturer to warn of every potential hazard when the purchaser/employer is in a superior position to establish safety guidelines relevant to a particular construction site. It cannot be overemphasized the warning concerns the use of seat belts, commonplace safety equipment.
Safety standards for the construction industry under OSHA are set forth in Title 29, Part 1926 of the Code of Federal Regulations. An employer has a duty to provide his employees with a safe working environment. 29 U.S.C. § 654 (1982). Furthermore, the employer shall instruct each employee in the recognition and avoidance of unsafe conditions. 29 C.F.R. § 1926.21 (1985). And of utmost importance, the employer is responsible for requiring appropriate personal protective equipment to be worn where there is exposure to hazardous conditions or where the use of the equipment "educes the hazards. 29 C.F.R. § 1926.28 (1985).
The majority today cast the manufacturer in the role of insurer by requiring the manufacturer to warn an employee of the purchaser of the necessity to wear a seat belt when operating a crawler-tractor with a ROPS, when that responsibility should be shouldered by the purchaser-employer, who is in the best position to eliminate any possible dangers, who has trained the employee, and who supervises the employee on a daily basis. In particular, on the facts in this case it was the plaintiff s immediate employer that purchased the ROPS kit, installed it two years after the purchase of the crawler-tractor and it was the plaintiff s employer that hid the seat belt from plaintiff s view.
*787The fact that the plaintiff must be satisfied with workers’ compensation from his employer, as limited by statute, for the injuries occasioned in the performance of his work should not affect the decision in this case.
It is respectfully submitted the judgment of the lower court against Deere should be reversed.
Miller, J., joins the foregoing dissenting opinion.