On Motion for Rehearing or to Transfer to the Court en Banc.
PER CURIAM.In his motion for rehearing, plaintiff insists that the court erred in interpreting witness Thompson’s testimony that with “headlights approaching on low beam” there would be “some difference” in the result of the “visibility test” made by him to mean that the distance in which defendant could have seen plaintiff would be reduced. Plaintiff says it is equally reasonable to infer that said answer meant that the distance would be increased. A careful reading of the answer in context with the remainder of the witness’ testimony leaves us convinced that we did not err in our interpretation of its meaning. But assuming that the meaning of the answer could not with reasonable certainty be so interpreted, then, for the same reason, it must follow that it could not be interpreted to mean that the distance would be increased. In that case, the most that could be made of its meaning would be that there was “some difference” with complete uncertainty as to whether such “difference” amounted to a reduction or an increase of visibility. Such a situation could be of no benefit to plaintiff. The burden rested upon him to show by substantial evidence the distance in which defendant, in the exercise of the highest degree of care, could and should have seen decedent. The testimony on that score, even when interpreted as broadly as contended by plaintiff, failed to establish that distance.
But moreover, and equally important for the reason stated in the opinion, plaintiff’s case failed upon another ground wholly independent of the ground above stated, to wit: the clearly established fact that defendant could not have swerved his car to avoid striking decedent without materially endangering his own life.
*451We have carefully considered the remaining assignments of plaintiff’s motion for rehearing or, in the alternative, for transfer to court en banc and find them without merit. The motion is overruled.