¶1(dissenting): I think appellee is bound by the testimony she adduced in her own behalf. In my opinion that testimony defeats her recovery. In the first place, the testimony brings this case fairly within the exception to the general rule under which the truck driver would have been negligent as a matter of law. In the second place, that testimony establishes the prima facie defense to the charge that the truck driver was negligent in that it tended to show tne truck driver in the exercise of reasonable care could not have avoided the accident.
¶2Of course, appellee might have introduced other testimony had the facts warranted it, as is frequently done, to show that under the circumstances related by the truck driver he could have, or should have, seen the deceased in time to avoid the accident. Appellee did not see fit to do so and I think she is bound by the testimony she adduced.
¶3On the other hand, if we assume the jury disbelieved the testimony of the truck driver, what evidence is there upon which to rest a verdict? There is none except evidence of an accident and pure speculation as to how it occurred. That is not a sufficient basis upon which a verdict can be permitted to stand under the numerous authorities cited in Hendren v. Snyder, 143 Kan. 34, 41, 53 P. 2d 472, and many other cases which might be cited.
¶4I think the demurrer should have been sustained upon another ground. It is not necessary to repeat the evidence touching the negligence of the deceased. It seems to me this is one of the clearest cases of contributory negligence that can be imagined. How the deceased could remain on a blacktop highway at a point three or four feet from its south edge and yield no portion of the highway, *599which was only eighteen feet wide, when three to five cars were approaching from the east and the nearest car was only 150 feet away and when a lighted truck was approaching from behind him without being negligent as a matter of law, I am unable to understand. And this is especially true when the undisputed evidence discloses there was a sanded shoulder south of the blacktop approximately four feet wide which constituted a sufficient place upon which to walk.