(dissenting). I respectfully dissent from the conclusion reached in this case. I agree, as stated in the opinion, that it was within the province of the jury to disbelieve the testimony of the defendant and her husband. However, when that testimony is stricken from the case, I find no evidence upon which the liability of the defendant may be predicated. To my mind the so-called inferences are *49no more than mere guesses or speculations and embody nothing but possibilities.
So, too, I can see no application of sec. 85.40 (5), Statutes of 1929, to the facts in this case. The road was plainly visible to the defendant, upon whose car, so far as the evidence shows, there were sufficient lights. The accident occurred at eleven o’clock p. m. There is no claim in the case that the curve in the highway in any way obscured the defendant’s vision or prevented her from seeing the deceased or that violation of this statute contributed to the injuries complained of. It seems to me, therefore, pure speculation to say that had the defendant been driving at a lesser rate of speed the accident might not have happened.
In my view of the case the facts failed to establish any liability on the part of the defendant.
I am authorized to say that Mr. Justice'Nelson concurs in this dissent.
A motion for a rehearing was denied, with $25 costs, on February 9, 1932.