(concurring): I concur in the decision of the majority and have no criticism of the majority opinion as written. The author, of course, states the facts with entire fairness. I do, however, prefer to state my own reasons for the conclusions I draw from those facts. As I view this record the district court clearly would have committed reversible error had it sustained defendants’ demurrer and deprived the jury of its right to determine whether the driver of the gasoline transport truck was guilty of negligence.
Here two vital witnesses, in a most unfortunate accident, lost their lives. One was the engineer of the train, plaintiff’s husband. The other was the operator of defendants’ transport gasoline truck. No eye witness to the accident testified. The legal presumption was that each of the deceased persons exercised due care for the preservation of his own life. Of course, that presumption prevailed until rebutted. *442I agree the burden rested on plaintiff to introduce evidence to rebut the presumption as applied to the driver of the defendant gasoline transport. Without attempting to narrate all the pertinent facts, stated in the majority opinion, I observe defendants’ answer admitted its driver had a clear and unobstructed view of the train for a distance of 1,900 feet. That is more than one-third of a mile. In contemplation of law he saw what he could, and should have seen. Yet he attempted to negotiate this crossing with a heavy load of highly inflammable liquids immediately in front of the approaching train, which defendants state was coming at a high rate of speed. I shall not pursue the matter with a consideration of other pertinent inferences of negligence which, on demurrer, must be resolved in the widow’s favor.
In my opinion the record amply discloses the question of the negligence of the driver of defendants’ truck was certainly one over which reasonable minds at least might differ. That being true defendants’ demurrer to plaintiff’s evidence was properly overruled. The foregoing is precisely what the tenth circuit court of appeals also held in Chicago, Rock Island & P. R. Co. v. Consumers Coop. Ass’n, 180 F. 2d 900. There this very question was thoroughly considered on the identical record used in the instant case, the only difference in the cases being that in the federal case the Chicago, Rock Island and Pacific Railroad Company, and others, were plaintiffs.
I need not quote the pertinent portions of that opinion or its headnotes but attention is especially directed to the latter as they concisely cover material facts and issues in the instant case. They accurately cover the ordinary rule that a deceased person is presumed to have exercised due care for his own safety, that the presumption may be rebutted by specific facts or circumstances and that the facts and circumstances in the case were sufficient to rebut the presumption of the defendant driver’s care and to require the case to be submitted to the jury, the reason being that reasonable men could draw different conclusions therefrom. In my view that conclusion was inescapable in that case and is likewise unanswerable in the instant case. That reasonable jurors might draw different conclusions from the evidence seems to me to be rather conclusively established when members of the federal court and of this court themselves draw different conclusions therefrom.
Of what legal significance, in the instant case, is the question *443whether G. S. 1949, 8-566 is a fair, a wise or an unwise, law? I can conceive of none. No question was raised concerning the constitutionality of that statute which requires the drivers of certain vehicles, like the one operated by the driver for the Consumers Cooperative Association, to stop at a railroad crossing such as the instant one, in wide open country, to listen and look and not to proceed until they can do so with safety. No question whatever was, or is now, presented whether the statute constitutes unjust discrimination against other vehicles transporting persons for hire, or otherwise. Courts are limited in their decisions to rule upon issues joined by the parties. Appellate courts do not reach out and rule on issues not presented to a trial court. Much less do they reverse decisions thereon.
It is difficult to believe anyone would seriously question the fairness or the wisdom of a law which requires motor vehicles carrying passengers for hire, or a bus carrying school children, or a vehicle carrying explosives or inflammable liquids to comply with the requirements of a law such as G. S. 1949, 8-566. In any event whether such an enactment is progressive or reactionary, wise or unwise, as a reasonable means of best protecting all concerned in the use of public highways is a matter which rests solely in the province and judgment of the legislature. The duty of courts is not to arbitrarily nullify the legislative will or to question the wisdom of legislative policy. It is elementary that their duty, in those respects, is to ascertain the legislative will and to make it effective if reasonably possible to do so. (State, ex rel., v. Russell, 171 Kan. 709, 237 P. 2d 363, and various cases therein cited.)
Did it constitute reversible error to strike portions of defendants’ answer? Manifestly, pertinent and material allegations of any pleading should not be stricken. The code, however, expressly authorizes the striking of redundant or irrelevant matter on motion of the party prejudiced thereby (G. S. 1949, 60-741) and failure to bring such matter to the attention of the court before pleading thereto constitutes a waiver thereof. (Sheldon v. Board of Education, 134 Kan. 135, 4 P. 2d 430.)
I shall not deal in generalities in discussing this subject but with the allegations of this particular answer. It plainly concedes there was no near obstruction to the view of the approaching train. It admits this train, in open country, was plainly in view for a distance of 1,900 feet, more than one third of a mile. Under these circum*444stances was the engineer obliged to reduce the speed of the train before negotiating the curve so as to be able to stop at the crossing in the event someone might attempt to drive over it in front of the approaching train? I do not think so.
Without reviewing our numerous decisions on the subject it is sufficient to say the part of the answer stricken, when fairly examined, discloses it did not allege peculiar facts and circumstances which made speed of the train, in a wide open country, a proper charge of negligence on the part of the engineer. The trial court properly struck that part of the answer. That order likewise was in harmony with the Kansas law as announced in Chicago, Rock Island & P. R. Co. v. Consumers Coop. Ass’n, supra, which was decided in 1950, prior to the order here involved. Although the allegations of defendants’ answer were not there involved the substantive law on the subject of speed of a train in open country was clearly and accurately stated. The opinion treats the subject fully and well. The substance thereof reads:
“No statute or effective regulation has been called to our attention limiting the speed at which trains may be operated in Kansas outside the limits of municipalities. And it is the settled law in that state that a high fate of speed of a train in an open country where no peculiar conditions exist which make it dangerous, standing alone and without more, does not constitute negligence." (p. 905, 906.)
Numerous supporting Kansas decisions are cited in the opinion. It is sufficient to direct attention to the facts and circumstances involved in the cited cases. In one of our rather recent cases (Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491), based on a long established rule in this state and the prevailing doctrine elsewhere, we quoted with approval from 44 Am. Jur., Railroads, §§ 487, 495, as follows:
“ ‘The mere fact that the engineer sees a person on or dangerously near a railway track in front of his moving train does not require him to endeavor to stop the train, for he has a right to assume, in the absence of anything to indicate otherwise, that such person will get out of his dangerous position in time to avoid a collision and injury, and the doctrine of last clear chance is not called info operation.’
“ ‘But while the relative rights and obligations of a railroad company and travelers on the highway are reciprocal, it is the privilege of the railroad company that its .trains shall have the right of way, and that all persons on the highway shall yield precedence to the trains. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching traveler to make the crossing first; the traveler must yield the use of the rail*445road track to an approaching train, and tire conduct of the train crew may be lawfully predicated upon the expectation that travelers will observe their duty in this regard.’ ” (p. 287.)
Probably the most severe mental hazard and nervous strain on railway trainmen is that caused by operators of motor vehicles who approach crossings at a high rate of speed and suddenly apply their brakes and stop just before reaching a crossing or by those who attempt to cross immediately in front of a closely approaching train. It indeed would be a shocking decision to railway trainmen everywhere to learn that, if in the faithful performance of their duty in accordance with established railroad law on which they had a right to rely they lost their lives, their widows and children could recover nothing for their loss.
The failure to limit speed of a train, in open country, was not occasioned by a regard for railroad companies but was the result of an early public demand for speedy and expeditious train operations at the hands of railroad companies. (Bunton v. Railway Co., 100 Kan. 165, 169, 163 Pac. 801.)
Indeed the supreme court of the United States has declared unconstitutional an act of the legislature of Georgia which sought to compel a railroad engineer to begin to check the speed of his train when 400 yards from each public road crossing at grade and to keep checking the speed so as to stop in time should any person or thing be crossing the track on the road. The act as applied to all crossings was declared to be a direct burden on interstate commerce when applied to an interstate passenger train and beyond the power of a state to enact. (Seaboard Air Line Ry. v. Blackwell, 244 U. S. 310, 315, 61 L. ed. 1160, 37 S. Ct. 640.)
That decision is quite understandable when one considers the practical problems of slowing up or stopping the momentum of long trains at every railroad crossing in open country in comparison with the ease of stopping a motor vehicle. Any other law would be practically destructive of the successful operation of interstate passenger trains as demanded by the public and under control of the interstate commerce commission.
The endless delays in railroad transportation occasioned by a law such as the one declared invalid in Georgia are readily apparent when one realizes the public records of our state highway commission disclose we have thousands of railroad crossings at grade in this state alone. I shall not labor the subject. It readily is admitted, as in the United States supreme court case, supra, that *446there are peculiar conditions and circumstances under which speed may constitute negligence. However, the allegations stricken from the instant answer did not allege such peculiar conditions and circumstances as made speed actionable negligence. The district court had a proper conception of the law and its rulings should be affirmed. v
Price, J., joins in the foregoing concurring opinion.