¶1(dissenting): Time will not permit writing an exhaustive opinion, and I will attempt to set forth my views briefly on the question in which I differ with the majority.
¶2Defendant’s motion for judgment on the answers to the special questions, notwithstanding the general verdict, concedes for that purpose that the answers are supported by the evidence. (Cain v. Steely, 173 Kan. 866, 874, 252 P. 2d 909; Hubbard v. Allen, 168 *549Kan. 695, 701, 215 P. 2d 647.) And on this premise tbe sole question is — do those answers compel a judgment for defendant?
¶3In considering this question we must bear in mind the often repeated rule of this court that a general verdict imports a finding in favor of the prevailing party upon all of the issues in the case not inconsistent with the special findings, which are to be given such a construction, if possible, as will bring them into harmony with the general verdict. (Cain v. Steely, supra;Hubbard v. Allen, supra; Schroeder v. Nelson, 157 Kan. 320, 326, 139 P. 2d 868; Davis v. Kansas Electric Power Co., 159 Kan. 97, 108, 152 P. 2d 806; Simeon v. Schroeder, 170 Kan. 471, 474, 227 P. 2d 153.) In considering answers of the jury to special questions submitted, the court is not permitted to isolate one answer and ignore others, but all are to be considered together, and if one interpretation leads to inconsistency and another to harmony with the general verdict, the latter is to be adopted. (Cain v. Steely, supra;Dick’s Transfer Co. v. Miller, 154 Kan. 574, 119 P. 2d 454; Lee v. Gas Service Company, 166 Kan. 285, 288, 201 P. 2d 1023; Tuggle v. Cathers, 174 Kan. 122, 254 P. 2d 807.) In considering these special questions and answers together, I am unable to see wherein they are so inconsistent as to compel the overthrowing of the general verdict. The fact that defendant was confronted with an emergency (Q. 3, A. 3) did not relieve him of all negligence as a matter of law. The general rule of law, supported by a mass of authority, is well stated in 38 Am. Jur. 1070, Negligence, § 361:
“A person confronted by an emergency or sudden peril is not required to exercise the greatest prudence or most exact judgment, rather, he is required to exercise only that degree of care which an ordinarily prudent person would exercise under the same or like circumstances. Whether a person in such a situation has exercised that degree of care is a question of fact for the jury, unless the facts are undisputed and reasonable minds could draw but one inference from the evidence introduced. . . .” (Emphasis supplied.)
¶4And also in 65 C. J. S. 410, Negligence, § 17a:
“The arising of an emergency does not, however, relieve one from the obligation of exercising ordinary care, but is merely one of the circumstances which is proper for consideration in determining whether ordinary care has been exercised, and if one’s conduct did not measure up to the standard of ordinary care under the circumstances in which he found himself he is chargeable with negligence notwithstanding the existence of the emergency. In this connection his conduct is not necessarily to be judged according to the circumstances as they appeared to him, and the proper test is how the circumstances ought to have appeared to him in the exercise of reasonable care.”
¶5*550It is also a well-established rule of this court, and one followed by decisions from nearly every court in the land, that the question of negligence and contributory negligence is a matter for the jury, if the facts are such that reasonable minds in the exercise of fair and impartial judgment might reach different conclusions thereon. (4 Hatcher’s Kansas Digest [Rev. Ed.], Negligence, § 71; West’s Kansas Digest, Negligence, § 136 [8], [9].)
¶6In view of the foregoing general rules of law, it became a question of fact for the jury as to whether the defendant exercised that degree of care which an ordinarily prudent person would have exercised under the same circumstances. The defendant’s car was traveling at a speed of 50 miles per hour when he first saw the child in the highway 95 feet ahead. At that point he was confronted with an emergency. The jury in answer to question No. 7 found that the defendant failed to slow his car while anticipating the child’s reaction to the blast of his horn, hoping she would stop. And by its answer to question No. 8 found that the defendant hesitated too long anticipating what the child would do before he applied his brakes.
¶7The majority opinion states that as a matter of arithmetic, defendant’s car traveling 50 miles per hour, without applying the brakes, would have traveled 95 feet in 1.3 seconds. Had defendant applied his brakes when he first saw the child, he would have reduced the speed of his car materially, and might have avoided injury to the child which resulted in her death. However, when he saw the child and only sounded his horn, then later applied his brakes, he mathematically rendered the chance of avoiding the accident impossible. Certainly defendant’s failure to apply his brakes when he first saw the child, and his failure to reduce the spe.ed is in harmony with the general verdict. What is the duty of the driver of an automobile traveling at the rate of 50 miles per hour, and seeing an infant in a highway 95 feet in front of him? Is it merely to sound the blast of a horn and anticipate that the infant has sufficient intelligence to choose a proper course in getting out of the highway, or is it the duty of such driver under such circumstances to immediately apply his brakes and reduce the speed of his car, in anticipátion that such child might not hear the blast of the horn, and, if so, might not respond thereto, or choose an improper course in an attempt to avoid being struck? I can bring myself to but one conclusion and that is — it is a question of fact for *551the jury under the evidence in the case, and not a question of law for a court. I cannot bring myself to the conclusion that a trial cotirt or an appellate court, on review, may substitute their own judgment as to the facts of the case under the circumstances, thereby invading the province of the jury. I am of the opinion that the judgment of the trial court should be reversed.