ON REHEARING
*196Grant & Fuchs, and Gene C. Bose, of Baker, attorneys for appellants.Respondents' Petition for Rehearing
*197Bamba, Silven and Horton, of Baker, and Wilson S Olsen, of John Day, for the petition. Before Warner, Chief Justice, and Tooze, Ross-man, Ltjsk and Perry, Justices. TOOZE, J.Plaintiffs have filed a petition for rehearing alleging that we erred in several of the conclusions reached by us in our original opinion handed down June 8, 1955.
Plaintiffs’ principal complaint is directed to our conclusions respecting the absence of substantial evidence to support the allegations of negligence made against defendants. Our attention is again called to the testimony in the record, and to the inferences which plaintiffs claim may reasonably be drawn therefrom, to sustain their contention originally made and ably presented in their brief, and now repeated, that there is substantial evidence to support the verdict.
We carefully scrutinized and considered the entire record before arriving at our conclusions. Everything now called to our attention in plaintiffs’ brief in aid of the petition for rehearing was fully evaluated upon our original consideration of the matter. We find nothing new that causes us to revise our views as originally expressed.
The inferences necessary to support the charges of negligence, and to which plaintiffs again direct our attention, are inferences based largely upon speculation, and not upon established facts. As the basis for the inferences necessary to be drawn to make out a case, plaintiffs do and must rely upon the erroneous premise that the point of impact on the highway is definitely established by the evidence.
As we pointed out in our original opinion, the point *198of impact is not so established. It is conceded that the location of the broken headlight glass and radio aerial on and to the south of the center line of the highway at a point 30 feet westerly from where the tire marks of defendants ’ ear commenced is definitely established as a physical fact, although such physical fact rests upon the oral testimony of sheriff Damon, plaintiffs’ principal witness. It also is an undisputed physical fact that the tire marks made by the left wheels of defendants’ motor vehicle ran in a straight line westerly for more than 200 feet, and that they were on the north or right side of the highway, two feet from the center line thereof. Of course, this physical fact also rests upon the testimony of sheriff Damon, corroborated by that of the witness Green, but there is nothing whatever in the record to dispute it, either by way of direct evidence or by any reasonable inference that might be drawn from the evidence produced. It accords with the positive testimony of the driver of defendants’ vehicle. Further, it is a physical fact that the impact between the automobile and the body of decedent occurred on that part of the front of the ear between the right side of the left front headlamp and the left front side of the hood. There was a dent on the hood of the car, and no dents elsewhere; in particular, there were no marks or dents on the left front fender. These facts are shown by the photograph of the front of the car taken by sheriff Damon within a short time after the accident.
Therefore, in the light of these known facts, and as we said in our original opinion, a determination that the location of the broken glass and radio aerial on the highway marked the exact point easterly and westerly on the road where the impact occurred as claimed by plaintiffs could be reached only by a highly specula*199tive and unreasonable inference. To so conclude would necessarily be the result of mere guesswork. Purely speculative inferences or conclusions do not constitute substantial evidence. Lynch v. Clark et al., 183 Or 431, 440, 194 P2d 416.
As we originally pointed out, the physical facts in this case demonstrate beyond any question that the impact occurred at least three feet north of the center line of the highway; the broken glass and radio aerial lay on and to the south of the center line. How this debris got there no one knows, nor could know, except that it was thrown by and from the rapidly moving vehicle at some moment following the impact. When decedent’s body was thrown from contact with the car, it was thrown in a diagonal direction (southerly and westerly) to the south edge of the pavement, although the automobile kept moving in a direct line westerly. It may be that the glass and radio aerial were also so thrown. Many speculative conjectures might be made as to just what happened, and how it happened, with one guess as good as another, but actions for negligence are not determined by mere guesswork.
Plaintiffs invite our attention to the following portion of our original opinion:
“* * * To fix the location of the glass from the standpoint of an easterly and westerly direction as the point along the highway where the impact occurred, would require a finding that when decedent’s body was struck and broke the glass in the headlight, the glass was thrown directly and immediately to the left of the moving car for a distance of three or four feet.”
and in their brief say:
“We agree with the Court that ‘obviously, such a finding would be speculative’. We will go further *200and state that in onr opinion, it would be most unlikely, in fact well nigh impossible for the glass to be thrown in that manner. So far as respondents are concerned, they have never so contended. * * *.
“As we view it, the situation is as follows: The testimony of Damon that the nearest slddmarks were ‘about two feet’ north of the yellow line, is in the record. His testimony that the radio aerial and the broken headlight glass were found in a compact body exactly on or a little south of the yellow line, is also in the record. It is our belief that since no exact measurements were made, Mr. Damon was more probably in error when testifying regarding the location of the skid marks, than as regards the location of the headlight glass & other debris. Disregarding this, however, these two statements are inconsistent with each other. Both could not be correct and it was for the jury to determine which was the truth and which represented an error in recollection. This Court can, we submit, no more say that the location of the skid marks as testified to was correct and that the decedent was struck at last three feet north of the center line, thereby disregarding the headlight glass and radio aerial, than it could disregard the skid marks and say conclusively, as a matter of law, that the glass and radio aerial marked the point of impact and that the decedent was struck on or south of the yellow line. It was for the jury, and the jury alone, to determine which was the true situation.”
Plaintiffs are in error when they say no measurements were made. With a tapeline, and assisted by Green, Damon made exact measurements of the tire marks and other distances involved.
Furthermore, plaintiffs are in error when they say there is an inconsistency between the statements of Damon respecting the location of the debris and the location of the tire marks. Obviously both statements may be true. There is no evidence in the record to *201dispute either, nor is there any evidence in the record from which a reasonable inference might be drawn that one or the other of such statements is false. The facts testified to were physical facts; they were facts open to view by anyone. They were testified to positively by Damon, a distinterested witness, and they were not contradicted. The testimony of Damon was not inherently improbable, incredible, nor contrary to physical facts or common observation and experience, and was based upon actual observation and investigation in his capacity as an officer of the law. In such circumstances, neither the jury nor this court would have the right to speculate upon whether one or the other of the statements is untrue, or disregard either. 20 Am Jur 1030, Evidence, § 1180. Had the statements been inconsistent in fact, then we agree that it would have been the sole province of the jury to determine wherein lay the truth.
Moreover, we cannot agree with plaintiffs that if Damon made an error in his location of either the debris or the tire marks, it is more likely that he erred as to the tire marks. In our opinion, the reverse would be true. As an investigating officer, Damon certainly would be primarily concerned in the movements of the automobile causing the death, rather than in the exact location of the debris on the highway. However, that is relatively unimportant to the decision in this case.
In our original opinion, we did not discuss the stopping within range of vision” doctrine, deeming such discussion unnecessary to our decision. However, the question was presented to us in the briefs of the parties in connection with an instruction given the jury. In their brief in support of the petition for rehearing, plaintiffs again raise the question. They do *202so in arguing the reasonableness of some of the inferences they seek to draw from the established facts.
Although in some jurisdictions it is the law that a driver of a motor vehicle is guilty of negligence as a matter of law if he drives at a rate of speed that will not permit him to stop within the range of his vision, it is not the law of this state. In Alt v. Krebs, 161 Or 256, 261, 88 P2d 804, Mr. Justice Lusk, speaking for the court, said:
“It is further argued that the plaintiff was negligent because, under her own testimony, she was unable to stop her car and so avoid a collision with the defendant’s car after she saw it thirty feet ahead of her; that this evidence manifests that she was driving at an excessive rate of speed under the circumstances, was not keeping a proper lookout, and did not have her automobile under control. [Plaintiffs make somewhat the same argument in the instant ease.] But this is only another way of saying that it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped within range of the driver’s vision—a doctrine definitely rejected by this court in Murphy v. Hawthorne, supra [117 Or 319, 244 P 79, 44 ALR 1397].”
Mr. Justice Belt wrote the opinion in Murphy v. Hawthorne, supra. He also wrote the opinion in the later case of French v. Christner, 173 Or 158, 173, 135 P2d 464, 143 P2d 674. In this latter case, Justice Belt quoted with approval the following from 5 Am Jur 648:
“Without denying that in many situations and under many conditions a driver of an automobile is as a matter of law guilty of negligence in driving at such a rate of speed as prevents stopping within time to avoid an obstruction within the range of his vision, there is a strong tendency in the recent cases to refuse to adopt that as a universal formula or a hard and fast rule. Thus, it has been held to *203have no application in case of emergencies creating unexpected hazards. The rule does not apply to a case where an object or obstruction which the driver has no reason to expect appears suddenly immediately in front of his automobile * * (Italics ours.)
In this case, the evidence is wholly silent as to whether the decedent was within the lane of travel of the Holland car a sufficient distance or a sufficient time ahead to make it possible for the driver to avoid striking him. The driver did not see him until immediately prior to the impact, although the lights on her car were burning and she was looking ahead on the highway. It is just as reasonable to infer that decedent suddenly and unexpectedly appeared in front of the moving vehicle as it is to infer that he was in the line of travel of the car a sufficient distance or sufficient time ahead to make it possible for the driver to avoid hitting him. It must be kept in mind that we are now considering the question of alleged negligence on the part of defendants. The presumption of due care on decedent’s part is of no avail in establishing such negligence. In 9B, Blashfield Cyc. of Automobile Law and Practice 511, § 6051, it is stated:
“The presumption of the exercise of due care merely negatives contributory negligence, and does not compel the conclusion that the other person involved in the accident was negligent.”
In 16 Am Jur 207, § 302, the rule is stated thus:
“Negligence on the part of the person injured and killed is ordinarily not presumed; he is presumed, on the contrary, to have exercised due care for his own safety at the time of his injury. This presumption is indulged, however, only to relieve a plaintiff from an inference of negligence and not to supply evidence of the negligence of a defendant. *204Moreover, the circumstances surrounding the mishap may be such as to rebut the presumption of due care and even to raise a presumption of contributory negligence on the part of the person killed.” (Italics ours.)
There is also a presumption in favor of defendants that they exercised due care, and the burden is upon plaintiffs to overcome that presumption by substantial evidence. Plaintiffs’ difficulty in this case rises from a lack of evidence, direct or circumstantial, to establish the necessary negligence on the part of defendants. Paddock v. Tone, 25 Wash2d 940, 172 P2d 481.
As stated, there is nothing in the record to show that decedent was in view long enough for Margery Holland to have seen and avoided him. To say that he was in sight long enough is merely conjecture. There is nothing in the evidence to show whether decedent was walking on the paved portion of the highway toward the approaching car, or whether he was walking diagonally or directly across the road, or whether he was standing still, sitting down, or stooped over, or whether he was in the act of rising to his feet after having fallen to the pavement for some unknown cause or the other. How long and where he was on the road before being struck is unknown, and there is no way of knowing it, so it would require pure speculation to find that he was there a sufficient length of time for Margery Holland to see and avoid colliding with him.
In pointing out inferences which it is claimed might reasonably be drawn by a jury from the established facts in the ease as a part of a discussion of the “range of vision rule”, particularly as respects the charges of negligence based upon speed and lookout, plaintiffs rely in large measure upon a chart appearing at page *205413, Vol. 9C, Blashfield Cyc. of Automobile Law and Practice. This chart purports to set forth the distances a car equipped with brakes in excellent condition may be stopped when travelling at certain rates of speed. The chart allows a certain distance for reaction time of the driver after the necessity for the application of brakes arises, and in each speed category gives the overall distances required for stopping. For example, at a rate of speed of 50 miles per hour, a forward distance of 55 feet is allowed for reaction time to set the brakes, and then 111 feet is fixed as the stopping distance, or a total of 166 feet of travel after the emergency arises.
Unquestionably, this chart is based upon experiments conducted with different motor vehicles and drivers at different times and places. As a general proposition, the information on the chart might be of value in the driving education of motor vehicle operators, but it serves no purpose in a case such as this. The figures on the chart are not evidence in this litigation, nor could the chart itself have been admitted in evidence. Insofar as this case is concerned, the information given is pure hearsay. Tuite v. Union Pacific Stages, 204 Or 565, 284 P2d 333, 341. Moreover, in any negligence case, the information contained in the chart would be of no value, unless the experiments giving rise to the figures or estimates were first shown to have been performed under conditions substantially similar to those present at the time and place involved in the controversy. Tuite v. Union Pacific Stages, supra; 2 Belli, Modern Trials 1023, § 180. There are so many factors that enter into motor vehicle stopping distances as to make any fixed formula of slight, if any, value in a given case. Condition of tire tread, weight of the vehicle, type and condition of brakes, *206force with which brakes are applied, the type and condition of the roadway, and the differences in reaction time among individual drivers, are but some of those factors. In the instant case, defendants made no attempt to stop the car within the shortest distance possible or practicable. As shown by the type of tire tracks, made by the car, and as testified to by Margery Holland, the application of the brakes was not made with full force, nor was any attempt made to bring the car other than to a gradual stop. The deductions plaintiffs make, based upon the information contained in the chart in question, are of no aid to them in this case.
Plaintiffs complain that in our original opinion “appears what seems, on its face at least, a rather startling statement.” The statement referred to is:
_ “There is nothing in the record from which it might reasonably be inferred that the decedent was free from contributory negligence. Therefore, as to decedent’s contributory negligence there is no question of fact for determination by the jury.”
We agree with plaintiffs that this statement, if read alone, might cause some confusion. However, it should be read in the, light of the paragraph of the opinion immediately preceding where we said:
“Furthermore, from the known facts and circumstances in this case, it is manifest that decedent was guilty of contributory negligence as a matter of law. His being where he actually was at the time and place of the impact cannot be explained or excused under any reasonable theory. Wherever he was immediately prior to the accident he could see the approaching cars. If, as has been suggested, he might have been hurrying from the north side of the road to the south side to intercept the McKinney car with a view to getting a ride into Mt. Yernon, he would still have been guilty of contributory negligence. He was a pedestrian, with the ability to *207step aside from an approaching automobile, or to remain still in a place of safety. He was under a duty to yield the right of way to the approaching cars. Had he given due heed and taken the precautions which a reasonably careful and prudent person would have taken under like circumstances, it is inconceivable that the collision could have occurred.”
As to the above statement to which their complaint is directed, plaintiffs say:
“This statement seems to clearly imply that the Court is attempting to shift the burden of proof on contributory negligence in Oregon, from the defendants, where it has always been, onto the plaintiffs.”
We fear that if plaintiffs have been misled as to what we intended, others may also misunderstand, so we take this opportunity of saying that we had no intention of changing or in any way modifying the well-established rule in this state that contributory negligence is an affirmative defense and, in establishing the same, the burden of proof is upon the defendant.
However, under the established facts of this case, we are firmly convinced that decedent was guilty of contributory negligence as a matter of law. 16 Am Jur 207, § 302, supra. There is no evidence whatever respecting the actions of decedent immediately prior to the impact. All that is known is that at the instant of impact he was perhaps in an upright position on the highway, approximately three feet north of the center line thereof. In the light of the known facts and the applicable law of this case, and in the total absence of evidence, direct or circumstantial, to explain or justify decedent’s presence on the pavement at the time and place he was struck by the rapidly moving vehicle, if indeed it would be possible to give any reasonable explan*208ation, the conclusion is inescapable that decedent was guilty of contributory negligence. The presumption of due care cannot save him from that finding as, under the known facts and circumstances of this case, that presumption is overcome as a matter of law. On this straight stretch of highway in wide-open country where the headlights of approaching automobiles could be seen for long distances, it is inconceivable that a pedestrian could be hit by one traveling in a straight line on its own side of the road if he exercised even the slightest degree of care for his own safety.
As the basis of liability in all cases of this type, the existence of negligence and proximate cause is determined by the conditions prevailing immediately prior to and at the moment and place of impact, and not in the light of subsequent events, and these conditions must be established by substantial evidence, direct or circumstantial, and not by mere surmise. Owens v. Holmes, 199 Or 332, 261 P2d 383; Quetschke, Adm'x v. Peterson & Zeller, 198 Or 598, 258 P2d 128; Wintersteen v. Semler, 197 Or 619, 620, 636, 250 P2d 420, 255 P2d 138.
In arriving at our conclusions we have not overlooked the allegations of plaintiffs’ complaint and the admissions in defendants’ answer that prior to the impact decedent was walking upon the highway. Such fact in no way affects the result.
We adhere to our original opinion. The petition for rehearing is denied.