(Pro Tempore), dissenting.
The constitution of this state demands that “No fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” Oregon Constitution, Art 7, § 3 (1910).
In commenting on this provision of the constitution, this court stated in Hamilton v. Kelsey, 126 Or 26, 30, 268 P 750, as follows:
“* * # In. proceeding with our investigation we must bear in mind that we are not authorized to weigh and appraise the value of the evidence. *184The Constitution of this state has limited our powers to that of detecting its presence.”
This court in Farrin v. State Industrial Acc. Com., 104 Or 452, 466, 205 P 984, approved the following statement taken from 1 Moore on Pacts, § 20:
"Judge Cooley * * # said: ‘The jurors, and they alone, are to judge of the facts and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities and take what may be called a common-sense view of a set of circumstances involving both act and intent than any single man, however pure, wise, and eminent he may be.’ People v. Garbutt, 17 Mich. 9; Moore on Pacts.
“ ‘The jury, from their experience and knowledge of the common concerns of life, are presumed to be the best triers of fact,’ said Judge Scott of the Missouri Supreme Court. ‘They take with them into the jury-box their experience in life, which has enabled them to form the rules by which they will ascertain the weight to be given to the evidence of anyone who speaks in their sight and hearing, having due consideration of the circumstances by which he is surrounded.’ State v. Schoenvald, 31 Mo. 147, 155.
“ ‘Without discussing the relative merits of a fixed tribunal for the trial of facts, and the trial by jury,’ said Judge Pearson of the North Carolina Supreme Court, ‘suffice it that the common law prefers the latter, and considers it safer, in the investigation of facts, to depend upon the good sense of a jury, than upon the knowledge of a judge; for the reason that juries take a commonsense view of every question, according to its peculiar circumstances, whereas a judge generalizes and reduces everything to an artificial system *185formed by study.’ State v. Williams, 2 Jones L. (47 N.C.) 257, 269.
“Mr. Justice Miller said: ‘In my experience in the conference room of the Supreme Court of the United States, which consists of nine judges, I have been surprised to find how readily those judges come to an agreement upon questions of law, and how often they disagree in regard to questions of fact, which apparently are as clear as the law.’ 1 Moore on Facts, § 19.”
Only the evidence favorable to plaintiff and the inferences favorable to plaintiff deducible therefrom are to be considered on a motion to remove a case from the consideration of a jury.
“ ‘The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury.’ Galvin v. Brown & McCabe, 53 Or. 598 (101 Pac. 671).” Farrin v. State Industrial Acc. Com., supra, at p 464.
The sole legal issue presented to this court is not its appraisal as to whether or not defendant was guilty of gross negligence as that term has been defined in prior decisions of this court (apparently to the satisfaction of the legislature, which has not altered the guest statute), but whether the evidence presented is such that reasonable men could differ concerning the conclusion to be drawn from it with reference to the issue of gross negligence.
Mr. Justice Rand, speaking for this court in Storm v. Thompson, 155 Or 686, 694-695, 64 P2d 1309, in a case not too dissimilar from the instant case, said:
“We cannot say from the facts above stated that all reasonable minds would draw the same *186conclusion that the defendant was negligent or not negligent, and, if negligent, whether the same amounted to gross negligence. Hence, those questions were not questions of law for the court but were questions of fact for the jury. When the facts are such that reasonable minds will differ as to whether there was negligence, the determination of the matter is for the jury and it is only where the inference to be drawn from the facts is so plain that all reasonable minds will draw the same conclusion that it becomes a question of law for the court.”
The same rule is laid down by the Restatement.
“The extent of the court’s control varies in the different jurisdictions of the United States, but in general goes no further than to permit the court to withdraw a question from the jury when, in the court’s opinion, the evidence presented is such that reasonable men could not differ as to the conclusion to be drawn from it.” 3 Restatement 438, Torts, Comment on Subsection (2).
The plaintiff is entitled to rely on circumstantial as well as direct evidence. Thus Justice Wolverton, speaking for the court in Nat. Bank v. Fire Association, 33 Or 172, 187, 53 P 8, 50 P 568, stated:
“* * * That there was no direct evidence of the explicit fact of firing the goods, implicating the proprietors, none can gainsay; but the question here is whether there was any evidence, direct or circumstantial, sufficient to go to the jury, from which they could fairly infer the fact at issue. If so, the question was for the jury, and the court could not invade its province by directing them to bring in a certain kind of verdict.”
The writer accepts the majority’s statement relative to the issue of speed in this case as follows:
Similarly, the jury in the present 6C% # # *187case could permissibly infer that the defendant’s speed at the curve was possible as high as 65 miles per hour.”
Indicating that defendant had full knowledge of the highway in question, the curve and its character, and the 45 mile per hour speed sign which designated the safe speed to negotiate the curve, is the following statement taken from the concurring opinion:
“There is no difficulty in finding that defendant was conscious of a risk when she approached the curve. From her previous use of the particular highway she knew that the curve was there, its character and the speed indicated by the highway sign as the safe speed to negotiate the curve.”
Both the prevailing and concurring opinions seem to question whether the curve was a sharp one. Also the prevailing opinion seems to question whether the curve was a causative factor in the accident. Therefore, the writer herewith annexes exhibits 4 and 3. Exhibit 4 portrays the curve in the direction defendant’s car was traveling; exhibit 3 portrays the curve from the opposite direction. From these photographs it is submitted the jury could find that the curve was a sharp one — at least a 45 degree curve. The Texas Supreme Court characterizes a 30 to 45 degree curve as follows: “ — that the curve was a rather sharp one of from 30 to 45 degrees.” Burt v. Lochausen, 151 Tex 289, 299, 249 SW2d 194. Moreover, the defendant herself concedes and characterizes the curve as a sharp curve. Thus she states in her brief: “The accident occurred just beyond a sharp curve which is shown in Exhibits 3 and 4.” It is submitted the defendant should be familiar with the curve. Likewise it is reasonable to assume defendant would *188not make an admission in her brief that was not justified by the record.
With reference to the causal connection between the curve and the accident, it must be' remembered that the pavement was dry, and that the car started to skid fat least 113 feet east of the pole marked on exhibit 3. Again defendant states in her brief as follows: ■
“The physical evidence observed by the police officer is indicated on Exhibit 5. Skid marks 113 feet long began just past the curve and ran to a telephone pole off the highway, which was broken in' two.”
Viewing the evidence in the light of the cardinal principles reviewed in earlier paragraphs, it is submitted the jury could reasonably find that the curve was definitely a causative factor in the accident. How can it be held as a matter of law that the curve was not a factor when it is remembered that the defendant entereddt at a rate of speed of 65 miles an hour at nighttime? The fact that the skid marks started “just past the curve” indicates no effort Was made to brake the oar until it became out of control “just past the curve.”
The majority opinion states:
“* * * A sharp curve obviously presents greater difficulties to a motorist than one of a broad sweeping character. Moreover, the pavement is so sloped or banked in some curves that the operation of cars through the curve is materially facilitated.”
It is submitted that the matter of sloping or banking, if any, of the pavement is sufficiently portrayed by exhibits 3 and 4 so that the jury could make an *190appraisal thereof. The prevailing opinion comments on the adequacy of the photographs, exhibits 3 and 4. The defendant herself testified that these exhibts were true and correct representations of the curve. No contention was raised below or here by defendant to the contrary.
*189
*190The State Highway Department placed warning signs at the entrances to this curve, drawing attention to it and designating a speed of 45 miles per hour. The defendant admitted that she was well acquainted with the curve and that she realized that she was approaching it. It is submitted that a speed of nearly 50 per cent in excess of the designated speed by a 17-year-old girl at nighttime in negotiating this curve upon a highway such as indicated by the evidence could be found to be gross negligence by a jury. Would all reasonable minds arrive at a contrary conclusion?
It will be remembered the highway department had erected a sign designating the speed for negotiating this curve at 45 miles per hour. ORS 483.106 provides for the designation of speeds upon the basis of an engineering and traffic investigation, and that only after an investigation and determination that any speed is greater than is reasonably safe under the conditions found to exist upon any state highway should such speed be designated. The presumption is that the state highway officials faithfully performed their functions.
The prevailing opinion states as follows:
“ORS 17.250 states that a jury must be instructed by
“ * * the court on all proper occasions:
*191“ ‘(6) That evidence is to he estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,
“‘(7) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.’
If the turn in the road was deemed by the plaintiff to have a material bearing upon this case, we can not understand why something better than these two photographs was not presented as a means of depicting the degree of curvature and the condition of the pavement as to banking at the place where the motorist would make the turn.”
The writer was always of the opinion that the foregoing statutory rules applied only to situations in which the evidence was exclusively in the possession of one party. Frangos v. Edmunds, 179 Or 577, 595-596, 173 P2d 596; Fitze v. American-Hawaiian SS. Co., 167 Or 439, 444-450, 117 P2d 825. However, if the statutory rules cited are to apply, it may be noted that while the plaintiff made the showing he did with reference to the road and the curve, counsel for defendant directed no questions to the defendant relative to the roadway, the curve, the accident, her keeping up with the car ahead, or her speed in the mile preceding the curve. Also, the defendant rested without the introduction of any evidence.
The concurring opinion states:
“Had it been shown in this case that the curve was sharp, or that there were defects in the highway, or construction equipment in the road, or other circumstances known to the defendant which would *192increase the risk of harm, the case in all probability would present sufficient facts to warrant submitting it to the jury. There were no such facts here.”
It is submitted that the record, characterized by the concessions of the defendant, indicates that the curve was a sharp one, and that the jury could find that a high degree of probability existed that serious harm would result from the operation of a car at 65 miles per hour into this curve at nighttime.
The prevailing opinion relies upon the case of Ross v. Hayes, 176 Or 225, 157 P2d 517, and the Michigan case of Bobich v. Rogers, 258 Mich 343, 241 NW 854. In Ross v. Hayes the opinion points out that the accident happened:
“* * * As they were passing through an S curve, near Algoma, the Dodge suddenly swerved clock-wise across the highway and skidded sideways 75 or more feet.”
The court also points out in Ross v. Hayes as follows:
“Where the accident occurred the entire twenty-foot width of the oiled macadam pavement for a distance of 100 to 150 feet was covered with frost, making the road surface extremely slippery. The frost on the highway ‘doesn’t show any particular color; just looks clear.’ At times it can be seen depending somewhat on the direction in which one is looking. ‘Lots of times you can’t see it until you are right on top of it.’ Defendant Ault testified that he did not have any trouble in seeing the ice at the place of the accident, but he did not say where he was when he first saw it. Neither defendant Hayes nor any of the passengers in the Dodge car noticed the frost or ice on the pavement before the car started to sldd.
"* * * *
*193“The S curve above referred to was described as ‘not a very steep curve at all. I wouldn’t say it was a steep curve, just a modest curve.’ Plaintiff estimated that defendant Hayes was driving from 40 to 45 miles an hour when he ‘went into this curve.’ ”
It thus appears that the curve involved in Boss was not a very steep curve, and that the driver was going from 40 to 45 miles per hour when he entered the curve; also, that the ice or frost in question was not noticed by the driver before the car started to skid. This, of course, differentiates the Boss case from the instant case where the driver was fully cognizant of the condition of the road and the curve, of the warning sign, and where her speed was far in excess of that of the driver in the Boss case.
The Michigan case of Bobich v. Rogers, supra, is inopposite for two reasons. In Michigan, as is pointed out in the opinion, willful and wanton misconduct must be proved before there can be a recovery. Likewise, the only evidence with reference to speed in Bobich was that the defendant was driving in excess of 20 miles per hour.
It is submitted that the Oregon case which is closest to the facts of the instant cause is Storm v. Thompson, supra. The Storm case was an action to recover for an injury sustained by plaintiff while riding as a passenger in defendant’s automobile. At the time the car was being driven by defendant’s brother-in-law, who was not familiar with the road. The opinion stated the road made a turn at nearly a right angle, but the car at the time of the accident was going only 40 or 45 miles per hour. Although the defendant himself was not behind the wheel the court held that the question of his gross negligence *194was properly submitted to the jury, and in doing so stated as follows:
“The evidence in the instant case shows that the driver of the automobile was a competent and experienced driver but that he was not familiar with the road or with its turns, and this fact was known to the defendant, who was himself familiar with the road and knew the danger of passing or attempting to pass the turn where the accident occurred at a high rate of speed. The night of the accident was very dark but the roadway was dry, and the accident would not have happened had the automobile been driven at a less rate of speed. There were no warning signs in the vicinity of the turn and, before reaching it, the ear had passed over a straight roadway for a considerable distance and was being driven, according to defendant’s testimony, at some 40 or 45 miles an hour.
“The evidence further shows that the defendant was engaged in conversation with plaintiff and her husband and at times had his head turned in their direction. Apparently he was paying no attention to the road or to the location of the car. Just before reaching the turn and about 100 feet therefrom there was a house with which the defendant was familiar and he knew that within a very short distance therefrom there was a sharp turn which the car would have to pass. Upon seeing the house, he warned the driver that he was driving too fast but this warning came too late to enable the driver to check the speed of the car so as to make the turn in the road and, for that reason, the car was driven off the highway where the accident to plaintiff happened.
“We cannot say from the facts above stated that all reasonable minds would draw the same conclusion that the defendant was negligent or not negligent, and, if negligent, whether the same amounted to gross negligence. Hence, those questions were not questions of law for the court but were questions of fact for the jury. When the facts *195are such that reasonable minds will differ as to whether there was negligence, the determination of the matter is for the jury and it is only where the inference to be drawn from the facts is so plain that all reasonable minds will draw the same conclusion that it becomes a question of law for the court.”
While each gross negligence case must be judged upon its own facts, and no two are exactly similar, it is submitted that the decided weight of authority from outside jurisdictions supports the proposition that under facts bearing a similarity to those involved in the instant cause, the question of defendant’s gross negligence is considered one of fact for the determination of the jury. Thus in Nangle v. Northern Pac. Ry. Co., 96 Mont 512, 32 P2d 11, 14, we find the following statement:
“In many cases, under statutes permitting recovery on behalf of the guest as against the driver of an automobile for gross negligence — where the driver, proceeding at an excessive rate of speed, failed to heed warning signals on approaching a curve in the road, and where the driver was acquainted with the locality in which he was driving, and where, under these conditions, on approaching a curve, he failed to reduce his speed and, proceeding around such curve, overturned his car or collided with objects resulting in injury to the guest —it is held that whether the driver was guilty of gross negligence was for the jury. Sorrell v. White, 103 Vt. 277, 153 A. 359; Welch v. Auseth, 156 Wash. 652, 287 P. 899; Zelinsky v. Howe, 163 Wash. 277, 1 P. (2d) 294; Taylor v. Cockrell, 116 Cal. App. 596, 3 P. (2d) 16; note 86 A.L.R. 1145.”
The New Hampshire court in MacGowan v. Mills, 93 NH 84, 35 A2d 797, 798, holds as follows:
“The jury could properly find on all the evidence that the defendant was driving at a high *196rate of speed and that he was exceedingly heedless of the situation, although he knew of the existence of the curve and understood the danger involved in approaching it at the speed at which it could be found he was driving. These facts would fully justify a finding of gross negligence as that term is defined by the Massachusetts decisions.”
In Brown v. Hill, 228 SC 34, 88 SE2d 838, 841, the Supreme Court of South Carolina holds as follows (In South Carolina heedless and reckless disregard of the rights of others must be proved in a guest case.):
“The conflicting testimony to which we have referred, together with the physical facts testified to by Corporal Dubose without contradiction, was amply sufficient to carry to the jury the issue of whether the unfortunate accident was brought about by appellant’s recklessness in approaching a dangerous curve without taking proper care, or in not having her car under control, or in operating it at a speed excessive in the circumstances.”
The Supreme Court of Texas in Bernal v. Seitt, 313 SW2d 520, 522, in a late case states the following:
“Conceding that, in the ordinary case, the view taken by the court below would be well taken, we yet consider that, on the instant record, the findings of gross negligence are sustained by the evidence under the authority of Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194, and Kirkpatrick v. Neal, Tex. Civ. App., 153 S.W. 2d 519, wr. of error refused, want of merit. Indeed, we regard the instant'facts as stronger for gross negligence than those of Burt v. Lochausen, in that here we have several circumstances, absent there, which positively point toward conscious indifference to the safety of others, that is to say, persistence, after repeated warnings, in excessive speed over a known difficult *197road and further such persistence at a marked curve after dark with the consequent increase of danger from the light of the oncoming truck.”
Other cases touching upon the matter under consideration are Kimberly v. Reed, 79 Ga App 137, 53 SE2d 208; Zelinsky v. Howe, 163 Wash 277, 1 P2d 294; Alexiou v. Nockas, 171 Wash 369, 17 P2d 911; Sorrell v. White, 103 Vt 277, 153 A 359.
In Rauch v. Stecklein, 142 Or 286, 20 P2d 387, this court, speaking through Mr. Justice Rossman, reviewed four cases concerning which the court stated:
“It will be observed that in the four cases just reviewed the injury was inflicted under circumstances which made the tortious act hardly an inadvertent one.”
One of the four cases referred to was the Iowa case of Cerny v. Secor, 211 Iowa 1232, 234 NW 193, concerning which this court stated as follows:
“* * * In Cerny v. Secor the host elected to drive ahead at a high rate of speed, disregarding a police warning sign which cautioned him of the curve ahead which his high speed rendered it impossible for him to round.” Rauch v. Stecklein, supra, at page 293.
In his dissenting opinion in Ross v. Hayes, supra, at p 241, Mr. Chief Justice Belt said:
“In considering whether the circuit court erred in submitting this cause to the jury, there are certain fundamental legal principles which should ever be kept in mind. This court should not substitute its judgment for that of the jury on a question of fact. The evidence must be viewed in the light most favorable to the plaintiff. After verdict, the plaintiff is entitled to every reasonable intendment of the evidence. When reasonable minds might *198differ as to whether the defendant Hayes was guilty of gross negligence, under all the facts and circumstances of the case — viewed in the light most favorable to plaintiff — the question is one of fact for the jury to determine. These principles are so well settled that citation of authorities in support thereof is deemed unnecessary.”
Because in the opinion of the writer the opinions which result in a reversal of this cause are not in harmony with the fundamental principles announced by the late Chief Justice Belt, and because the writer is of the opinion that they are invasive of the province of the constitutional triers of fact, he is compelled to respectfully dissent.