¶1 (dissenting). I cannot concur in holding that no reversible error was committed in the trial of this cause in the court below. The whole evidence *328 shows, and it is undisputed, that the defendants were grossly negligent and, as I read the record, that was the sole cause of plaintiff’s injuries.
¶2 The defendants, the owners and operators of the truck and trailer charged in their amended answer that the plaintiff was guilty of contributory negligence in that (1) he was driving his automobile at an excessive rate of speed and in excess of sixty miles per hour; (2) he failed to have his automobile under proper or any control; (3) he failed to keep a proper lookout; (4) he failed to stop his automobile or to swerve to the left to avoid striking defendant’s truck; and (5) he was driving his automobile while equipped with defective and insufficient lights. These allegations of the answer were put in issue by the reply.
¶3 The only witness who testified as to the speed at which the plaintiff was driving when he first saw defendants’ truck on the highway was the plaintiff himself. He testified in respect thereto as follows:
‘ ‘ Q. Mr. Kiddle, just prior to the time that you saw this truck on the highway there, prior to the time you put on your brakes, will you tell the jury what the speed of your automobile was, how fast you were driving. A. About forty-five miles per hour. ’ ’
¶4 On cross-examination, he testified:
“Q. How do you know you were driving forty-five miles an hour ? A. That is my usual rate. Q. Did you look at your speedometer? A. No, sir, but that is my usual rate of speed in traveling. I do a great deal of traveling. Q. With your brakes on solid, the brakes of that particular car on solid and skidding your wheels, about what distance do you think you can stop your car in at 45 miles an hour? A. I don’t believe I have knowledge of that. Q. You don’t know about that. And that is just the estimate .that you *329 make because that is the usual speed that you were traveling? A. That is right.”
¶5 Notwithstanding that this was the only testimony as to the rate of speed at which the plaintiff was traveling, the court instructed the jury:
“… If you find from the evidence in this case that at the time and place of this accident, the plaintiff was driving at a speed greater than was reasonable and prudent under the circumstances then and there existing, then he would be negligent, and if you find that such negligence contributed to the happening of the accident, then the plaintiff cannot recover damages in this case and your verdict should be for the. defendants.”
¶6 In the absence of any evidence tending to show that plaintiff was traveling at a dangerous or excessive rate of speed, the giving of this instruction was reversible error.
¶7 It was also error for the court to permit the jury to speculate as to whether or not plaintiff’s automobile was equipped with defective or insufficient lights, as charged in the answer. The only evidence in the record upon that question is the testimony offered by the plaintiff and by Mr. Frank Brittingham, a member of the state police force who was present at the time and who had stopped the loaded truck and trailer because of defective lights on the truck and trailer. Plaintiff testified:
“Q. How old was that automobile (plaintiff’s automobile) at the time of the accident approximately? A. About three months and a half old. Q. And do you recall about how much mileage was on it, how far it had been driven? A. About seven thousand miles. … Q. Did you have your lights burning? A. *330 Yes, sir. Q. Were they burning bright? A. Bright. Q. And were they both burning? A. Yes, sir.”
¶8 On cross-examination, he testified:
“Q. Do you have any idea what the distance ahead is of your lights, your lights’ ability to illuminate the road; that is, how far ahead the headlights of your car throw their beams? A. No, I haven’t. A Chevrolet ear and I suppose it was about like any other Chevrolet car. I know the lights were good and hadn’t caused any trouble.”
¶9 Mr. Brittingham testified:
“Q. Did you hear the other car approaching, Officer? A. Yes, I heard the other car coming. Q. And what about the noise, could you tell the jury what you did hear? A. You could tell there was a car coming, traveling along, I couldn’t see what rate of speed, because I wasn’t behind the car checking it. I just stepped over to the edge of the road to let the car come on by. Q. Was it a loud noise? A. It was a new car. It didn’t make a very loud noise.”
¶10 With no other testimony bearing upon this question, the court instructed the jury as follows:
“You are instructed that the law requires the plaintiff to have his automobile equipped with lights which would throw sufficient light ahead to make clearly visible all vehicles, persons, or substantial objects upon the roadway within a distance of two hundred feet. Likewise you are instructed that if you find from the plaintiff’s testimony that he failed to have his car equipped with lights sufficient to make clearly visible the defendants’ truck at a distance of two hundred feet, then the plaintiff would be negligent and could not recover.”
¶11 The giving of this instruction was error since there was no evidence whatever tending to show that the lights on plaintiff’s automobile were defective or in *331 sufficient. To permit jurors to speculate upon questions which are issues in the case but upon which no evidence is offered and no presumption applies is clearly error. The same is true in reference to the other three charges of contributory negligence — Nos. 2, 3 and 4.
¶12 This is not the case of a drunken joy-rider overtaking and jamming his automobile into the rear end of a loaded truck. The plaintiff was riding alone. He was 47 years of age and was in the employ of the federal department of agriculture, his official position being that of crop insurance supervisor for Oregon. His duties required him to travel over the state and he was engaged in the performance of those duties when he sustained the injuries complained of.
¶13 According to all the testimony, the accident happened at the hour of 5:36 o’clock on the evening of November 6, 1938, one minute less than a full hour after the sun had set on that day and every one admits that it was dark at the time. The place of the accident was on the highway six miles west of Pendleton and on what appears from the photographs offered to be a slight down grade, going west from Pendleton, the direction in which both the plaintiff’s automobile and defendants’ truck were traveling at the time of the accident. To reach that point, the parties had to ascend a long grade after leaving Pendleton and they had just passed the crest of the hill when the accident occurred. The driver of the truck, who was a witness for the defendants, testified that he had left Pendleton at 4 o ’clock that afternoon, had not stopped on the way and had reached the place where the accident had occurred at 5:36 p. m., having averaged only four miles per hour after leaving Pendleton, which was a distance of *332 only six miles. The accident occurred on a straightaway with no dwellings or lights on either side and the road-bed was dry.
¶14 The defendants are junk dealers doing business in Portland under the name of Alaska Junk Company. According to the testimony of the driver of the truck, who was called as a witness for the defendants, the truck was a four-ton Dodge with a dual axle and Teco logging trailer, having four dual wheels on the trailer and a set of dual wheels on the rear of the truck and single wheels on the front. He was hauling railroad rails and pipe, weighing approximately eighteen tons, one-third of the load resting on the bunk of the truck and two-thirds on the bunk of the trailer, the distance between the two bunks being twenty feet. On cross-examination, he further testified:
“Q. In other words, the load was laid on the truck and on the trailer and then it overhung the bed of the trailer about five or five and a half feet; is that correct? A. Yes, sir, that is right. Q. You say you were traveling somewhere between five and ten miles an hour, but I didn’t get at what point you gave that speed. Was that the time - A. That was the time of the impact. ’ ’
¶15 He also stated that he had just passed the crest of the hill when the truck was stopped, because of defective light, by Mr. Brittingham, the state police officer.
¶16 Mr. Brittingham, as a witness for the defendants, testified as follows :-
“Q. I will ask you if you had occasion to and did observe that collision or the incidents leading up to it immediately, Officer? A. Well, I didn’t see the contact, I was standing in front of the truck when the .contact took’place. I was stopping the-truck. Q. Will you tell the jury whether you had seen the truck earlier *333 in the evening. Had you? A. I had. Q. Just tell the jury where you were going. A. Well, I was on my way into Pendleton and I met the truck coming up the grade, the Rieth Ridge, we call it, and I noticed the clearance lights weren’t as bright as they were— they were practically all amber lights, so I turned around and dropped in behind the truck to wait until it got over the hill, to stop it. In the meantime another farm truck had come by without any clearance lights and I had pulled out around this Alaska Junk truck and stopped the farm truck and told him to get his lights fixed. Well, he had the lights but he didn’t have them on, and I come back and parked my car on the right hand side of the road off the roadway and walked up towards the Alaska truck to meet it and was flagging it down and pulling it off the road when the accident occurred. … Q. I believe you stated you stopped back up the road a ways ? A. Yes, I did. Q. What side of the road did you park on, Officer? A. I parked on the right hand side. Q. On the right hand side of the road? A. Yes, going east. Q. Pardon? A. The right hand side of the road going east. Q. On the shoulder of the road? A. Clear off the roadway. Q. Clear off the roadway? A. Yes. Q. And your lights, did you leave them on? A. On‘park’. Q. Left them on ‘park’? A. Yes. Q. Then you state that you walked down toward the truck? A. I did. Q. Where was it when you saw it? Had it cleared the ridge? A. It was just brealdng over the ridge. Q. Just breaking over the ridge. And on what side of the road was it during all of that time and at the time of the impact? A. It was traveling on his right hand side of the road. Q. On the - A. Going west. Q. On the truck driver’s right hand side of the road; is that correct? A. Yes. Q. Traveling west? A. Going west. Q. Yes. Did you hear the other car approaching, Officer? A. Yes, I heard the other car coming. Q. And what about the noise, could you tell the jury what you did hear? A. You could tell there was a car coming, traveling along, I couldn’t see what rate of *334 speed, because I wasn’t behind the car checking it. I just stepped over to the edge of the road to let the car on by. Q. Was it a loud noise? A. It was a new car. It didn’t make a very loud noise. Q. Was the left side of the highway obstructed at all, Officer? Was there anything to keep that car from turning and going around the truck. A. No, there wasn’t. Q. Then what happened at the time of the impact? A. Well, I was standing there waiting for the car to come around and pretty soon I heard the brakes, set the brakes, and heard the tires squealing and then the impact, and then I walked around there and here this Chevrolet sedan sat and the front end all tore up, tore to pieces and the man sitting in the car was Mr. Kiddle, all cut up, his face cut up, and so we tried to- … Q. Did you make any investigation at the accident, Officer, looking for marks? A. I checked the skid marks where the car was sitting after the impact. Q. And what did you find out about those marks? A. I found that the car had slid eighty feet before the point of impact, from the time he set the brakes to the point of impact. Q. And what about the character of those marks, Officer? Would you say they were light marks or deep marks, or what about them? A. The brakes were set pretty solid, pretty tight, and they were — left pretty deep marks. …
‘ ‘ Q. Mr. Brittingham, why did you stop the Alaska Junk Company car? A. For his clearance lights. Q. When you came tip behind him, as I understand it, you first passed him going in the opposite direction? A. I did. Q. Were you on the hill then? Was he on the hill? A. Yes. Q. And then you turned around down at the bottom of the hill, did you? A. I turned around right behind him. Q. Did you notice anything about his load at that time or at any other time? A. I just noticed he was loaded pretty heavy with steel, the truck was going very slow. Q. How far, if you know, was that steel extending beyond the bed of the truck? A. From five to five and a half feet. Q. From five to five and a half feet. I will ask you whether *335 or not there was any light or reflector on the end of that load of steel? A. No. …
“Q. Mr. Brittingham, were there any load chains on this load? A. Yes. Q. I will ask you whether or not they obscured the rear lights, if any there were, on the bed, that is, on the truck itself or on the trailer itself? A. Well, they partly obscured the clearance lights. Q. How about the rear lights? A. They had only reflectors on the back of the trailer. Q. Didn’t have any rear light on the back of the trailer? A. No. Q. There was an absence of rear light on the back of the trailer? A. Yes. Q. And where was the reflector on the back of the trailer? A. Set up on the trailer on the bolsters that go across for the bed to lay on. Q. Just a minute. A. On the back of the bed. Q. On the back of the bed. Would that be under the load? A. Underneath the bed, where the bolster goes across to lay the bed on. Q. That would be under the bottom of the load; is that right. A. Yes, under the bed. Q. And the load overhung those? A. Yes. Q. Five and a half feet? A. It didn’t lay down. Q. It was out past that at least five or five and a half feet. There was no rear light or rear reflector on the end of the load? A. No, not on the steel itself.”
¶17 It is impossible to determine from the testimony the exact spot where the collision occurred and, hence, it is impossible to say how far the truck had passed beyond the crest of the hill when plaintiff, in ascending the hill, had reached the point where he could have first seen the truck had it been daylight and not dark at the time. The plaintiff testified that he estimated the distance from the crest of the hill to where the collision occurred at 200 yards but he qualified his testimony by saying that it was merely an estimate and that it was dark at the time. The driver of the truck testified that the accident occurred just after the truck had passed the crest of the hill, while the police *336 officer testified, in effect, that he commenced to flag the truck as it broke over the hill. Hence, so far as the evidence shows, the collision may have occurred much closer to the crest of the hill than the distance estimated by the plaintiff. It is true there were photographs of the highway offered in evidence but no one testified that they showed the exact spot where the collision occurred.
¶18 Notwithstanding this and based wholly upon the testimony of the plaintiff to which we have referred, the trial court, in ten separate instructions, charged the jury that the plaintiff could not recover if he was driving his automobile at an excessive rate of speed, or if he failed to have his automobile under proper or any control, or if he failed to keep a proper lookout, or if he failed to stop his automobile, or if he failed to swerve to his left to avoid striking defendants’ truck, or if he was driving his automobile with defective and insufficient lights.
¶19 The objection to these instructions is not that they did not correctly state a principle of law but that there was no evidence in the case to justify the court in giving them. Certainly, it cannot reasonably be said, when considering plaintiff’s testimony and the circumstances surrounding the accident, that they were sufficient to warrant the jury in inferring that the plaintiff was driving at an excessive rate of speed, or that he did not have his automobile under control, or failed to keep a proper lookout, or failed to swerve to the left, or was driving with defective or insufficient lights, or that he was in any way guilty of contributory negligence. He had just passed the crest of the hill and reached a position where, had it been daylight or had defendants’ truck had any lights *337 burning which could have been seen from the rear, he could first observe what was ahead of him. Every one knows the color of railroad rails and of used pipes sold for junk and knows that, with their ends protruding beyond the rear of the vehicle on which they are being carried without lights or reflectors visible from the rear, they could not be easily discernible to the driver of an automobile following the vehicle along an unlighted highway, as was the case here.
¶20 For the information of the public, Honorable Earl Snell, secretary of state, has had printed and distributed a reaction time chart, showing how far a car traveling at different given speeds would go before the driver could move his foot from the accelerator to the brake and the distance which the car would travel when going at such speeds before it could be stopped by the application of the brakes. As applicable to automobiles traveling at the two speeds of 40 and 50 miles per hour, the reaction time shown by the chart in fractions of a second and the distance which would be traveled before the brakes could be applied are as follows:
¶22 The braking distance, when traveling at 40 miles per hour is given as 88 feet, and, when traveling at 50 miles per hour, is 137% feet, before the ear is completely stopped.
¶23 However accurate or inaccurate this chart may be, and we do not doubt'its accuracy since obviously it was based upon a study made by experts after a large number of experiments had been made and was dis *338 tributed to tbe public for the purpose of’ insuring safety on the highway, it shows the fallacy of permitting a jury to speculate on what a reasonable man would or would not do when confronted with an unexpected danger and who, at the most, would have only three or four seconds to act. No one knows how long it would take any particular person traveling on a dark night at the rate of 45 miles per hour, or 66 feet per second, to ascertain whether a vehicle ahead of him on the highway, with no rear lights' or reflector, was moving or stationary, or what, under such circumstances, his reactions would then be.
¶24 The burden of proving that the plaintiff was guilty of contributory negligence was on the defendants and they offered no testimony tending to prove that issue and, since there was nothing in plaintiff’s testimony tending to show that any negligence .upon his part contributed to the accident, it was error for the trial court to charge the jury that it could find for the defendants if they found that the plaintiff was negligent in any of the particulars alleged in the answer.
¶25 In this connection, it must be remembered that the state officer testified that, before he commenced to flag the defendants’ truck, he had parked his car off the traveled part of the highway facing east, with his lights on “park”. How far the officer’s car was in front of the truck when the collision occurred the evidence does not disclose but, seeing these lights, the plaintiff had a right to assume that this car was approaching on his left and, therefore, that he could not swerve to his left because of the possibility of coming into collision with an automobile which he had a right to assume was approaching on his left. While it is true that the driver of an automobile is bound to *339 keep a proper lookout for the traffic on the highway in front of him, he has a right to assume that all trucks or other motor vehicles which are ahead of him on the highway and going in the same direction will, in the night, have their rear ends lighted, as provided by law, and the plaintiff had a right to act upon that assumption on the night of the accident.
¶26 Hence, although the statute which was then in force — sections 55-2601 and 55-2603, Oregon Code 1935 Supplement — then required that the head lamps of motor vehicles shall be so constructed, arranged and adjusted as to render clearly discernible a person 200 feet ahead on a straight, unlighted highway, nevertheless the trial court, upon the mere proof of the happening of the accident alone and in the absence of any proof that the plaintiff was negligent in any respect, was not justified in submitting the issue of plaintiff’s contributory negligence to the jury and the submission of such questions was reversible error.
¶27 In setting out the above testimony, we have endeavored to include the statements of every witness which have a possible bearing upon the questions involved upon this appeal. This is done for two reasons: (1) in order to show the entire lack of evidence showing or tending to show any negligence upon the part of the plaintiff, and (2), because of the effect which this decision may have upon future litigation. If this judgment is upheld and the doctrine announced by the majority opinion becomes the law of this state, then any driver of an automobile on an unlighted highway at night, following a truck which has no lights visible from the rear, will be devoid of all remedy if, without any fault of his own, he comes into collision with the truck, regardless of the injuries sustained thereby. *340 This doctrine, if adopted, would place the entire burden of proof upon the person injured and relieve the negligent truck owner, whose fault had caused the injury, from any necessity of proving contributory negligence of the party injured.
¶28 Moreover, it seems clear that when the plaintiff first saw the truck looming up in front of him, as he says it was, he was confronted with an emergency and, therefore, that it was reversible error for the court to refuse to give the instructions requested by the plaintiff which correctly stated the rules of law applicable to persons who, without any fault of their own and through the negligence of others, are compelled to act instantaneously and without deliberation.
¶29 For these reasons, the judgment should be reversed and the cause remanded for a new trial.