(dissenting): I find myself unable to concur in the opinion of the majority. It is the culmination of long growing dissatisfaction with the holdings of appellate courts generally in cases involving collisions at grade crossings. .1 have a profound conviction that the law of torts is based on not only the fundamental concept that a man should be reimbursed for the loss his neighbor’s negligence has caused him, but that society as a whole has an interest in bringing about a lessening of the economic loss following negligence.
With the advance of civilization tremendous forces have been created — the steam engine, the automobile, the high-tension lines carrying electric power around the country, and other similar agencies. These forces are, in the main, when properly and carefully controlled, essential to mankind. When on the other hand, they are not controlled or escape from control or are negligently managed or operated, they become destructive and a menace. The point is, courts should regard the law of torts as a means of bringing about care in the handling and direction of these forces as well as the means of reimbursing the individual who suffers loss. It is a sad commentary on human nature, but true, when one becomes convinced that his negligence in handling these forces will be followed by pecuniary loss, he is more apt to exercise care in their management. Indeed fear of pecuniary loss through negligence is the only thing that enables man to exist in close contact with these forces.
As a matter of fact, the real concept of the law of torts was punitive to the tortfeasor rather than reimbursement to the injured one.
In this field as far as railway crossing accidents are concerned generally, the courts of the land have been remiss. It all came about through the development of the law of contributory negligence as applied to grade crossing cases. It is true this case is one where the driver of the engine on the rails is suing the user of the highway. The principle is the same, however. Through the years *447the courts have developed the law of contributory negligence far beyond what in my opinion the welfare of our people demand. The “old stop, look and listen before venturing from a place of safety to one of danger” rule was developed in the days of the slow coal-burning engine, with steam coming out, puffing smoke and traveling thirty-five or forty miles an hour, and with horse-drawn traffic on the highways. The tempo of life was altogether different from that of today. It would have been a negligent observer indeed who could not detect an oncoming, smoke-belching steam locomotive in time to, in the exercise of the care possessed by the mythical, ordinary, reasonable man, have stopped his team so as to avoid a collision. Having stopped, it would be strange indeed if a traveler on the highway could not have detected such an engine coming toward him upon the rails before proceeding.
Another picture altogether is presented by the streamliner of the modern age. Now instead of the smoking, bell-ringing steam locomotive going at a comparatively slow pace, we have a comparatively silent Diesel drawn train hurtling through the countryside, frequently at the speed of over 100 miles an hour. During the silent hours of the night these monsters of steel hurl themselves through villages, hamlets and towns and past grade crossings where the ordinary commerce of the people is carried on by means of trucks, buses and other gas-propelled engines. Man has not himself changed as rapidly as has his means of transportation. He is handicapped by the same reaction time, has the same means of observation and the same habits of thought as did his father of a generation ago.
To hold to the same rule as to care that should be observed by the traveler on the highway at this date in comparison as was held to a generation ago is to forget or refuse to take cognizance of this change in the operation of railroad transportation and traffic on the highways.
The railroads excuse their increased speed by pointing out that it is demanded by the people whom they serve, that is, the public.
I do not gainsay that. What I do say is that the rule as to the liability of a railroad on account of negligence at grade crossings is such that the railroad companies have increased the speed without taking the steps they could take to provide safety devices at railroad crossings. The result is forty-one of our people in Kansas were killed in 1950 at grade crossings and fifty-three in 1951. If we knew some vile disease was going to take fifty-one of our people *448in 1952 by death, there would be a general outcry to do something to prevent that tragic occurrence, yet we know that in the nature of things more than fifty-one people will be killed at grade crossings in 1952 and nothing to prevent it will be done.
When the opinion of the majority is once printed in our reports and becomes the law of the land, it will be a letter of marque to the railroads that they can proceed to kill that many or more and the courts can do nothing about it. I do not believe the courts should concede they are so helpless. As long as the railroads rest assured that the killing of one of our citizens at a grade crossing will not cost them through being held liable for the tragic event, they will not take any steps to provide safety devices. Such is human nature. Hence my statement at the outset of this dissenting opinion that my inability to concur in the majority opinion is the culmination of a long dissatisfaction with the holdings of courts generally with reference to grade crossing tragedies.
In order to reverse this judgment we will not have to change any rules of law.
These cases are well collected in the prevailing opinion. The rule has been stated in a number of ways. For instance, the simple fact that there was a collision and someone was injured is not in itself sufficient to predicate liability. Negligence like any other fact may be established by circumstantial evidence. The circumstances, however, relied on must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established. The fact is not proved by circumstances which are merely consistent with its existence. The finding of negligence cannot rest on mere conjecture but must be established by competent proof. Statements such as the above run through all of our reports and they are referred to in the prevailing opinion.
I am familiar, too, with the rule that in consideration of a demurrer to the evidence we must believe all of the evidence introduced by the plaintiff, indulge every reasonable inference that can be drawn therefrom in favor of the plaintiff and where reasonable men might differ, the question becomes one for the jury.
I differ from the application of these rules of law to the facts in this case. The prevailing opinion and the specially concurring opinion simply state that since the train came around a curve 1,900 feet away from the grade crossing the only reasonable conclusion is that the driver of defendant’s truck must have driven upon the track *449without looking to see whether there was a train coming or that he violated the statute and did not stop before venturing upon the track.
In my opinion this is hardly a reasonable conclusion. It entirely overlooks the presumption that men to preserve their own lives would not deliberately drive in front of an oncoming streamline train. I dislike the calculation in seconds of what men did in times of stress. It is said “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 the defendants state was coming at a high rate of speed.”
This is a categorical statement and will not stand the application to it of the rule of reasonableness. To me it is utterly unreasonable. It is just as reasonable to me to assume that the driver of the truck started to cross the tracks long before the train had rounded the curve; that something happened to his engine and it was stalled upon the tracks or that he saw the tracks clear and started up his engine; that he came to a stop and proceeded to cross. To hold otherwise is to utterly ignore the element of reaction time which every person who drives an automobile or rides in one knows is the prime factor in automobile collision cases. The holding of the majority actually convicts the driver of the truck of committing suicide. I do not believe the' facts warrant any such conviction.
These same facts were passed on in Chicago, Rock Island & P. R. Co. v. Consumers Coop. Assn, 180 Fed. 2d 900. That was an action brought in the federal court by this plaintiff’s husband’s employer against the same defendants. The trial judge held against liability. In the opinion, just as in our majority opinion, the many cases involving proof of negligence were reviewed. That case finally turned on the statement by the court that all of the facts and circumstances established probative facts from which the jury in the exercise of fair and impartial justice could reasonably draw the deduction that the driver of the truck did not stop, look and listen or that he knew the train was approaching but ventured upon the track when the exercise of ordinary care required him to wait until it passed.
I have read this record carefully and I cannot see how in the world a court could make such a statement. To me it is utterly ridiculous. There were no eye witnesses and the physical facts are *450as persuasive to me that the train came much faster than anybody had any idea it would come and thus hit the driver of the truck or that his truck stalled upon the tracks. At the most, the facts are merely consistent with the plaintiff’s theory. This judgment is based upon conjecture.
I am much more impressed with the dissenting opinion of Judge Huxman in which he points out that the conclusion stated is altogether an unreasonable one. It is said that where four justices of this court conclude that the finding of the jury is reasonable and two judges of the circuit court of appeals think so, then it surely cannot be said that the minds of reasonable men would not reach such a conclusion. That statement overlooks the fact that a justice is charged with the duty of reaching a conclusion in his own mind and conscience as to a law point presented on an appeal.
I thus far have spoken only of the holding of the trial court overruling defendant’s demurrer to the evidence. The ruling striking out the allegations of contributory negligence in the answer is purely indefensible, in my opinion. For the first time as far as I know it will be printed in our books that not only is it difficult to prove a railroad’s negligence at a grade crossing, but now it is impossible to plead it.
For all these reasons, I dissent.
Wertz, J., joins in the foregoing dissent.