dissenting.
I did not sit when this matter was first heard by the court in January of this year. Had I done so, I would have then joined in the carefully considered dissenting opinion of Harris, J. pro tern., Burghardt v. Watson, 223 Or 155, 349 P2d 792, 804, and which has lost none of its original force by reason of the rehearing.
My prime objection to the last majority opinion, as well as to the first, is a feeling that the result reached is attained by the majority in failing to apply certain long established and universally recognized rules, particularly those applying when the appeal is from a denial of a motion for directed verdict, as here.
On the issue of gross negligence we are not permitted to weigh the evidence, but are limited to re*224viewing it solely for the purpose of determining whether there was substantial evidence of gross negligence or reckless disregard. Johnston v. Leach, 197 Or 430, 433, 253 P2d 642 (1953).
In Fish v. Southern Pacific Co., 173 Or 294, 301, 143 P2d 917, 145 P2d 991 (1944), we said:
“Error is assigned upon the court’s rulings on the motions for directed verdict and for judgment notwithstanding the verdict. In considering the propriety of these rulings, the motions must be regarded as having admitted the truth of plaintiff’s evidence, and of every inference of fact that may be drawn from the evidence. The evidence itself must be interpreted in the light most favorable to plaintiff. McCall v. Inter Harbor Nav. Co., 154 Or. 252, 59 P. (2d) 697. Where the evidence conflicts, the court may not infringe upon the function of the jury by seeking to weigh or evaluate it, but is concerned only with the question of whether or not there was substantial evidence to carry the case to the jury and to support the verdict. Ellenberger v. Fremont Land Co., 165 Or. 375, 107 P. (2d) 837; Allister v. Knaupp, 168 Or. 630, 126 P. (2d) 317.”
See, also, Eilertsen v. Weber, 198 Or 1, 5, 255 P2d 150 (1953); Stout v. Madden & Williams, 208 Or 294, 298, 300 P2d 461 (1956).
At this point I address myself solely to the matter of evidence of defendant’s speed as she closely approached the curve and the testimony of plaintiff concerning his apprehension and warnings given to defendant, all of which stand uncontradicted.
This review of that part of the record is prompted by the majority statement, reading: “The plaintiff testified that while the defendant was driving neither he nor any other occupant of the car commented upon *225the defendant’s speed.” The statement is correct if it is intended to impart the idea that no one in the car made reference to the speed in terms of its rate as traveling a given number of miles per hour. But, if that statement is intended to convey the impression that plaintiff was not uneasy and possibly indifferent to the rate defendant was traveling and sat silent, then I urge such a conclusion is clearly erroneous. This is made evident when we restore to its proper context the quotation from plaintiff’s testimony relied upon by the majority in support of their quoted conclusion. This I now do:
“Q Now, as you came down the road towards— before you got to this curve, Gary, did you ever have occasion to look at the speedometer on the car?
“A [Gary Burghardt] Yes. I looked at the speedometer.
“Q And from where you were sitting would you tell the jury — first, I will ask you where was it when you first looked at it or was it all the way down the road?
“A What?
“Q Was it all the way down the road from Blackman’s Corner that you had been glancing at the speedometer?
“A Just off and on. Once in awhile I happened to see that it was over towards the right.
“Q Over toward the right. Is that the kind of speedometer that moves in a straight line across?
“A I couldn’t say.
“Q But at least it was over to the right?
“A That’s the way it looked to me.
“Q Do you remember where the last time was when you noticed the speedometer? Where were *226you with reference to this curve the last time you noticed the speedometer?
“A We hadn’t come to it yet when I noticed the speedometer.
“Q Would you tell the jury your estimate of how fast you were going then?
“A I would say at least 65.
“Q At least 65. Did anyone in your car make any comment to Janet about the speed of the ear?
“A No.
“Q Did you say anything to her about the speed?
“A No.
“Q Did you thimk that she was going fast or not?
“A Yes. I thought she was but I didn’t say anything because I just didn’t want — I don’t know, maybe she wanted to go fast and I wasn’t the driver and I didn’t think I should say anything.
“Q Did you have any conversation about anything as you came up to this curve? Do you remember anything that you were talking about?
“A Not particularly.
“Q Did anyone, you or anyone, make any comment to her about the curve coming up ?
“A Just that she knew there was a curve coming up, I think, and we didn’t say anything that would have any reason for her to be excited or make her just tromp on the brake or something like that.
“Q Did anyone make any comment to her about the curve that was coming up, say anything to her about it?
“A It seems like I said something that there was a curve, but she knew it was there.
“Q What do you remember that you said?
“A I said something about — I remember it was something about ‘be careful of the curve/ or ‘watch out for the curve.’
*227“Q Or watch out for the curve?
“A Or watch out for the curve; yes.
“Q Do you remember where it was when you made that comment?
“A No, I don’t.
“Q But yon 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.” (Emphasis supplied.)
After G-ary had testified at a juncture in the cross-examination that it came to memory “that I said something about the curve coming up ahead,” he was asked:
“Q Are you sure you did, or is that just vague?
“A That’s what I remember because I was kind of nervous about it.”
I respectfully submit that majority evaluation of so limited a portion of plaintiff’s testimony exemplifies a too particularized but unconscious judicial encroachment upon the prerogatives of the jury and a too far departure from the long established rules previously referred to.
The foregoing extracts from the testimony of plaintiff, in my opinion, not only warrant inferences on the part of the jury that defendant’s car within the mile approaching the curve was traveling “at least 65” miles per hour as it neared the curve; and that plaintiff was apprehensive about the speed and warned defendant to be careful but that she, notwithstanding her previous personal knowledge of the signs advising 45 miles as the proper rate, heedlessly continued her *228course of risk and danger -without abating the speed she was then traveling.
In reference to the curve the majority opinion states: # # but from this point on [the curve] we do not have the benefit of any one’s description of what took place.” This, I respectfully submit, is not an exact statement. It ignores what value the jury might properly attach to the testimony of the witness .Graves as to the speed of defendant’s automobile before, while in the curve, and up to the moment of the unfortunate accident.
We learn from the record that somewhere near Blackman’s corner and before driving the mile intervening between that point and the curve, the occupants of the Olson car hailed another nearby automobile driven by Donald Graves and with a passenger, both apparently friends of Gary. It came to a stop, whereupon Gary momentarily left defendant’s car and went over to the Graves’ car where he had a conversation with the occupants of that automobile and returned shortly to take his place in defendant’s automobile. Upon leaving, the Graves car went first and was followed by defendant, and, as she testifies, at Gary’s request. The reason for this arrangement is not revealed nor is it of any importance to our understanding.
However, it is evident from the testimony of Graves, which follows, that he and his passenger were from thence forward interested in the progress of defendant’s car which was behind them about “a quarter of a mile.”
“Q After leaving Blackman’s Comer did you notice their car behind you?
“A [Don Graves] Yes. We noticed the car.
*229“Q Now, about how far ahead of them were you, Don, when the accident happened?
“A Oh, I would judge a quarter of a mile. Somewheres in there.
“Q Could you see their headlights in your rear-view mirror?
“A Yeah.
“Q Now, can you tell the jury whether or not she appeared to be gaining on you or just about holding steady or what?
“A Well, I couldn’t say for sure but I was doing about 55, maybe 60, and she was keeping up with me. She might have been gaining. I couldn’t say.
“Q You were about a quarter of a mile ahead?
“A Yes.
“Q Could you have been going a little faster than that?
“A 55, 60, is what I was going.
“Q That’s what you think?
“A Yes.
“Q What did you notice, if anything, in your rearview mirror at the time the accident happened?
“A I didn’t notice anything but the boy with me said he noticed—
“MR. GOODWIN: I object to that.
“THE COURT: Yes. You musn’t tell what somebody else said.
“Q (By Mr. Jacobs) At least you understood that an accident happened?
“A Yes.
“Q What did you do ?
“A We turned around and went back.”
From this testimony the jury was entitled to infer that the occupants of the Graves’ car were following closely and with continuing interest, whether by aid *230of the medium of the rearview mirror or otherwise, the progress of defendant’s automobile from its departure at Blackman’s comer, through the curve and to the point where it left the highway and were close enough to it to notice the happening of the accident, whereupon, the Graves’ car “turned around and went back.” The observation of defendant’s car on the part of Graves and his companion was for the relatively short time elapsing between the departure of the two cars from Blackman’s corner and the occurrence of the mishap, for in terms of speed miles could only have been but a few minutes if plaintiff’s car was traveling at the speed testified to by plaintiff and Graves. The jury was justified in concluding from Graves’ testimony that plaintiff traveled the entire course, including the distance while on the curve, at a speed of “about 55, maybe 60” miles per hour and possibly faster.
Both of the majority opinions following the first and last hearings seem to question the speed that defendant’s ear was traveling, the sharpness of the curve, and whether or not defendant was on the curve when her car left the highway.
I note in the last majority opinion that the car “was traveling with considerable momentum” and “that its speed must have been considerable.” The photographs (Exhibits 3 and 4), copies of which are annexed to the opinion of Judge Harris in his dissent to the first majority opinion, portray the beginning and end of the curve. He then says from these photographs it is submitted the jury could find that “the curve was a sharp one.” I concur in that conclusion. That it is not an illogical observation and was equally knowledgeable to the jury is conceded by the defendant, who in her brief says: “The accident occurred *231just beyond a sharp curve which is shown in Exhibits 3 and 4.” (Emphasis supplied.)
As to the question whether the car was on the curve when it left the highway, it is submitted that a jury might well have found that the car’s point of departure was at a place in the curve area by examination of Exhibit 3 which graphically notes the location of the telephone pole that defendant’s car broke in two and from thence noticed that 113 feet east therefrom, as shown by the State Policeman’s graphic drawing (Exhibit 1), was a point where the car started to skid on the curve.
In his specially concurring opinion, Mr. Justice O’Connell observes:
“There is no difficulty in finding that defendant was conscious of a risk when she approached the curve. Prom 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. * * *” Burghardt v. Watson, supra (349 P2d 803)
To this I would add that in addition to her own knowledge of the curve and personal consciousness of the risk, was the equal personal knowledge of plaintiff who made his apprehensions articulate by warning words bom of his concern because of the speed she was then traveling.
The foregoing quotation from the opinion of Mr. Justice O’Connell is immediately followed by the statement:
* * The ingredient which is lacking is the high degree of probability that serious harm would result. It is common knowledge that curves are frequently negotiated safely at speeds which *232exceed the indicated speed posted by the highway department. We are entitled to recognize that rounding a curve 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. # * *”
My point of departure from the reasoning of Justice O’Connell is embodied in his statement as to the want of the ingredient of a “high degree of probability that serious harm would result.” It is undoubtedly true that certain drivers of experience with ears of certain kinds and sizes might at times successfully negotiate the curve without hazard at speeds equal to or greater than that traveled by the defendant on that occasion. But that knowledge of the success of others cannot and should not be invoked as a mitigating factor or standard to be applied in all cases where such warning signs are ignored. Each case, in this respect, should be evaluated in the light of the circumstances existent in that case. I contend that the jury, not the court, should make that evaluation.
What is the purpose and meaning of warning signs established near the approaches of curves if not to convey to automobile drivers that they will assume a high degree of probable serious harm to themselves and others if they travel at any greater than the indicated speed on the portion of the highway so marked or flagged? Wherein is the value unless designed as an avoidance to reckless driving and its potential dangers ?
Is not the court rendering the legally placed warning signs innocuous as an effective means of thwarting highway disasters and minimizing the obligation of all drivers to avoid injury to their passengers and others by adopting with approval the conclusion of *233Justice O’Connell that the possibility of successfully rounding a curve at speeds greater than indicated by the warnings signs does not in itself show that there is involved a high probability of harm? Does not the majority’s failure in this matter to accord to such signs their fullest possible significance as devices to commanding observation of their intended warning run afoul of Mr. Justice Brand’s statement in Turner, Adm’r v. McCready et al., 190 Or 28, 54, 222 P2d 1010 (1950), where he says: “The element of recklessness may, under some circumstances, be inferred from evidence of the driver’s conduct in the light of conditions and of what he must have known.”
Here, the teenage driver’s conduct was an imprudent willingness to risk harm to her passengers by unsuccessfully betting, so to speak, her judgment that she could safely travel the curve at a speed 20 miles greater against the considered judgment of state authority, as reflected by its sign warning that such speed involved a high degree of probable risk of danger. Moreover, the visual warning of the state in the case at bar was amplified by the cautionary words of plaintiff.
I would not usurp the functions of the jury, but I cannot avoid the observation that there was enough material evidence to justify the jury’s inference that defendant’s conduct involved easily perceptible dangers of substantial bodily harm or death to the passengers in her automobile and that her operation of her car would so result if she proceeded around the curve at the speed the jury was warranted in finding she was traveling, and which gave her conduct a foolhardy or “don’t care” attitude and hence the color and quality of gross negligence.
I do not mean to suggest that any one of the fore*234going elements, i.e., speed, warnings of plaintiff, and highways signs, defendant’s familiarity with the road and curve, and possible diverting conversations, etc., taken separately, would justify a finding of gross negligence; but I do represent that taken in combination they presented a jury question as to whether the defendant was grossly and indifferently negligent under all the circumstances. Turner, Adm’r v. McCready et al., supra (190 Or at 54); Burrows v. Nash, 199 Or 114, 123, 259 P2d 107 (1953).
I am apprehensive that the evaluation of the evidence by the majority tends to dilute much of the force and value of Mr. Justice O’Connell’s able opinion in Williamson v. McKenna, decided June 22, 1960, 223 Or 366, 354 P2d 56, to which I subscribed, and indicates that we are again in danger of unduly trespassing upon the province reserved to the jury in gross negligence cases.
I would confirm the judgment of the circuit court.
Mr. Justice Sloan joins in this dissent.