(dissenting): In my opinion the ruling of the trial court on the demurrer was correct and should be affirmed. The plaintiff was the only witness in his own behalf as to the manner in which the accident occurred. In his direct examination he stated he was driving south on Emporia street at ten miles an hour and *20defendant was driving east on Third street between twenty-five and forty miles per hour, and that the cars collided in the intersection of the two streets. Without more detail I concede the evidence up to this point may have shown defendant’s negligence, but it is also clear it showed nothing as to plaintiff’s negligence. On cross-examination, plaintiff testified clearly that he saw the defendant approaching and that defendant did not slacken his speed, but plaintiff slackened his speed because he saw that he was going to be hit, and further that the reason he didn’t stop was because he figured he had plenty of time to get across, and later, “I figured I had the right of way and time enough to go on across.” On further direct examination he stated that when he entered the intersection defendant was two car lengths from the intersection. Plaintiff later testified on redirect examination that he was confused by the action of defendant, but on recross-examination it.was made clear that his confusion was about the time of the collision, and not as hé approached and entered the intersection.
It requires no weighing of the testimony to show that plaintiff, by his own admissions, saw the defendant coming at an undiminished rate of speed, but that, relying on his conclusion that he had the right of way and time to get across, proceeded, at a time when he saw'the situation, from a place of safety to a place of danger, with the result that á collision occurred.
As I review the record it clearly discloses a situation where the rule stated in Ray v. Allen, 159 Kan. 167,152 P. 2d 851, that—
“Following Bell v. Johnson, 142 Kan. 360, 46 P. 2d 886, it is held: where the plaintiff, who is the only witness in his own behalf, testifies to a state of facts which precludes his recovery the effect cannot be avoided, and he is bound thereby.” (Syl. ¶ 2.)
should be applied. The trial court did apply it, and I think correctly.
Wedell, J., concurs in the foregoing dissenting opinion.