dissenting: I realize fully the correctness of the rule that as against demurrer evidence is to be construed in the light most favorable to the party adducing it, and that in ruling on a demurrer the trial court is not permitted to weigh the evidence. In my opinion, however, the evidence here falls short of making out a prima facie case of actionable negligence on the part of defendant. The situation here was one with which most drivers have been confronted at some time or another in their experience. Defendant *758was not bound to anticipate that as he came over the crest of the slope to the south he would suddenly be confronted with a car fifty to seventy-five feet in front of him crosswise in the highway and two or three feet west of the center line. Under all of the circumstances, he did all he could do in the emergency, and, to use his words— “there was not any possible way in the world to miss him.”
I think the demurrer was properly sustained.
Parker, C. J., and Schroeder, J., join in the foregoing dissenting opinion.