Respondent’s Petition por Rehearing
ROSSMAN, J.The brief accompanying the petition for a rehearing and the argument presented on rehearing have been given careful consideration. In fact, the entire case has been analyzed once more.
Our original opinion gives a review of all parts of the evidence that appear to have any bearing upon the issues submitted by the appeal. The petition for a rehearing makes no claim that our review was unfair or incomplete. It argues that we should have affirmed the action of the trial judge which submitted *200the case to the jury and that we should not have reversed the challenged judgment.
Only four witnesses testified. All of them were called by the plaintiff. Only two of them had seen the accident occur. They were the plaintiff and the defendant. Both of them swore that they could not recall anything whatever about the movement of the car immediately preceding its entry into the curve or what occurred from that point on. For example, neither the plaintiff nor the defendant could remember whether any occupant screamed before the car met with its mishap or whether it slddded. The other two witnesses were (1) a police officer who came upon the scene a few minutes after the accident had taken place and (2) Donald Graves, the friend of the plaintiff who was driving the car which was a quarter mile ahead of the defendant’s and which was proceeding in the same direction. He did not see the accident take place.
Our original opinion states: “The plaintiff testified that before the car reached the turn he noticed that its speed was 65 miles.” We so stated notwithstanding the fact that the plaintiff had sworn in one part of his testimony that he made his estimate of the defendant’s speed before the car had reached Blackman’s comer where, it will be recalled, it stopped for several minutes. Nevertheless, we shall continue to assume that the car’s speed as it neared the turn was 65 miles.
There is nothing whatever in the record which indicates that the four young occupants of the car were in a gay or carefree frame of mind. The record mentions no petting, romping, singing or other activity which would draw the defendant’s attention from her duty as driver. Her driving should be judged in the *201same maimer as that of any other person who is giving attention to the operation of the car.
The plaintiff testified that while the defendant was driving neither he nor any other occupant of the car commented upon the defendant’s speed. His exact words were:
“Q Did anyone in your car make any comment to Janet about the speed of the car?
“A No.
“Q Did you say anything to her about the speed ?
“A No.
“Q But you have no recollection of making any comment to her about speed?
“A No.
“Q Did any of the others make any comment to her about speed?
“A Not to my knowledge.”
If the defendant engaged in conversation while driving, or in any other way diverted her attention from her duty, the fact escaped mention. It is true that the plaintiff testified, “It seems like I said something that there was a curve, but she knew it was there.” When his counsel asked him another question the plaintiff replied: “I said something about — I remember it was something about ‘be careful of the curve’ or ‘watch out for the curve.’ ” Then he was asked, “Do you remember where it was when you made that comment?” He replied, “No, I don’t.” Upon cross examination he testified, “but it just comes to my memory that I said something about the curve coming up ahead. But I can’t remember what happened after that.” The plaintiff at no time undertook to mention anything that happened from the time the car neared the *202curve. The plaintiff was not asked whether the defendant reduced her speed when she entered the curve.
Accordingly, as the car neared the curve the plaintiff “said something about the curve” but he was unable to “remember what happened after that.” How far the beginning of the curve was from the scene of the accident is not disclosed by the record.
Possibly everyone who has driven a car with a guest in the front seat has heard his guest mention a curve in the road, an intersecting road, a highway sign, some other car that is in sight or something else that engages the attention. Comment of that kind is inevitable because guest and driver have their eyes on the road and the objects in sight. Surely, when the guest makes comment of that kind he is not giving a warning, especially not when, as the plaintiff said in this case, “but she knew it was there,” that is, the curve.
The foregoing brings us to the curve. We pause to observe that although we have used the words “curve” and “turn” more than once in this opinion it may be that the turn in the road has received more attention in this court than it did in the trial court. For example, the above mentioned police officer, as a witness for the plaintiff and at the request of his counsel, drew in the presence of the jury upon a large sheet of drawing paper a sketch of the scene of the accident. It depicts the road, the shoulders, the telephone pole with which defendant’s car collided, the skid marks made by the defendant’s tires and sets forth in terms of feet the distance from the beginning of the tire marks to the pole and from the latter to where the car came to rest. But, it does not indicate the turn nor the distance from where the tire marks *203began to where the turn ended. After the officer had completed his drawing plaintiff’s counsel addressed bim as follows: “Will you put in where the curve is.” The officer replied, “The curve is on up this way. The skid marks were not in the curve.” He was not asked for the distance from the curve to the beginning of the skid marks.
Neither he nor anyone else made any effort whatever to show the distance from the end of the turn to where the car seemingly escaped from the defendant’s control. The facts just mentioned possibly indicate that the turn was not deemed as important in the trial court as upon appeal. We mention that fact solely for the purpose of indicating that it is impossible to determine from the record how far the ear had traveled after leaving the curve before it escaped from the defendant’s control.
Up to the point where the car approached the curve we have the plaintiff’s account of its operation, but from that point on we do not have the benefit of anyone’s description of what took place. Both the plaintiff and defendant swore they could not recall what happened after the car approached the turn in the road. It must be remembered that the accident did not happen in the area covered by the plaintiff’s description but at some distance beyond that point. The record does not disclose the distance between the beginning of the turn and the spot where the car seemingly escaped from the defendant’s control. It is true that the evidence affords a depiction of the destruction wrought by the car after it left the pavement, and since the damage inflicted by the car may afford some basis for judging its momentum, we will later give that fact attention.
*204Our original opinion mentioned the fact that near the beginning of the curve a highway sign signified that the indicated speed at that place was 45 miles per hour. Mr. Justice O’Connell, in the specially concurring opinion which accompanied our original opinion, stated:
“It is common knowledge that curves are frequently negotiated safely at speeds which exceed the indicated speed posted by the Highway Department.”
We believe that Justice O’Connell’s observation is well founded. If it needs corroboration it can readily find it in the fact that the Graves car which was just ahead of the defendant’s was going at approximately the same rate of speed as the defendant’s and passed through the curve and the area beyond without difficulty.
Although the plaintiff, as a witness, mentioned the curve and the sign which announced the indicated speed of 45 miles per hour, he did not say that the defendant failed to reduce her speed. It may be that a presumption is warranted (OHS 41.360 (1) and (33)) that the defendant reduced her speed to comply with the law’s demands, but we will continue to do as we did in our original opinion and assume that the defendant drove through the turn of the road at about 65 miles per hour. In his specially concurring opinion Mr. Justice O’Connell stated:
“We are entitled to recognize that rounding a curve at a speed twenty males in excess of the indicated speed of 45 miles per hour does not, in itself, show that there is involved a high probability of serious harm.”
It is clear, as our original opinion states, that the damage which the defendant’s car inflicted indi*205cates that it was- traveling with considerable, momentum when the accident occurred.' We are aware of no means whereby its actual rate of speed can be determined by' looking at the two photographs of the wrecked car that constitutes part of the record and taking note of the other evidence. But we are satisfied that its speed must have been considerable.
Navarra v. Jones, 178 Or 683, 169 P2d 584, states:
“The defendant gave no testimony concerning the speed at which he was driving. There was, of course, evidence concerning the nature of plaintiff’s injuries, which the plaintiff contended was some evidence of the violence of the collision with the concrete culvert, and, therefore, some evidence of the speed of the car. But such evidence alone was insufficient to show negligence, much less gross negligence, in the matter of speed. * *
Likewise, the fact that the accident happened does not establish the plaintiff’s charges. Simpson v. Hillman, 163 Or 357, 97 P2d 527, holds:
“Res ipsa loquitur has no application. Hence, no presumption of negligence is created by the mere happening of the accident. * * *”
The following is taken from 61 CJS, Motor Vehicles, §511 (3), page 204:
“The doctrine of res ipsa loquitur has been held not to be available to establish a presumption or inference of recklessness, gross negligence, willful misconduct, or gross negligence or willful and wanton misconduct.”
The plaintiff was, the last witness who testified. The following is taken from the close of his testimony:
“Q Gary, you had ridden with her before, hadn’t you?
“A I think so, a couple of times.
*206“Q As far as you knew she was a careful driver ?
“A Yes, as far as I knew. We drove around a couple of blocks in town there.
“Q There wasn’t anything wrong with her driving as far as you were concerned on this particular evening except that you thought she was going a little too fast?
“A Yes, that was all. Maybe a little too fast.
“Q Nothing wrong with the car, nothing wrong with the weather or the surface of the highway or—
“A Not to my knowledge.
“Q — or the way she handled the car other than you thought she was going too fast?
“A That is right.”
The testimony just quoted epitomizes the plaintiff’s entire case. As our previous opinion points out, the pavement was unusually broad (20 feet). The photographs of it indicate that its surface was possibly anti-skid. Its center line was clearly marked with a stripe. The record mentions no intersecting roads. Both the defendant and the plaintiff (who was in the front seat) were familiar with the road. The night was clear. The shoulders adjacent to the pavement were 4 feet broad. The roadway was dry and there was no ear in sight except the one a quarter mile ahead driven by the aforementioned Graves and going in the same direction. The plaintiff stresses the importance of the curve. However, as we have said, the evidence does not indicate the degree of curvature nor does it reveal whether the pavement was banked so as to facilitate the operation of a car through the curve. The photographs which we have mentioned appear to show a curve that is quite gentle. The following observation made by Mr. Justice O’Connehl in his specially concurring opinion remains true:
“We are entitled to recognize that rounding a *207curve at a speed twenty miles in excess of the indicated speed of 45 miles per hour does not, in itself, show that there is involved a high probability of serious harm.”
Williamson v. McKenna, 223 Or 366, 354 P2d 56, contains a category of the circumstances in which a non-paying guest may recover a judgment against his host. One of the categories, as given in that opinion, is the following: “The defendant’s conduct must involve a high degree of probability that harm will result.” The opinion explains:
“* * * The probability that harm will result from conduct is but another way of saying that the conduct is dangerous. Conduct is not reckless unless the probability that harm will result is strong. * * * The conduct ‘must involve an easily perceptible danger of substantial bodily harm or death and the chance that it will so result must be great.’ 2 Restatement, Torts, § 500 comment a.
Obviously something happened about the time that the car left the curve which confronted the defendant with a condition that she could not solve in the available time. When events move faster than the mental ability of the driver an accident may take place. Possibly, if the defendant could have thought faster or if she had had greater experience as a driver the unfortunate accident would have been avoided.
We believe that the passages which we just quoted from the Williamson case are applicable to this one. We are satisfied that the evidence does not bring this case within the category above quoted from the Williamson decision.
We adhere to our previous opinion.
*208McAllister, C.J., and Perry and Millard, JJ., concur in this opinion.