ROSSMAN, J.
This is an appeal by the defendant, Janet Olson, from a judgment which the circuit court entered in favor of the plaintiff Gary Burghardt after a jury had returned its verdict for him. The action is gov[157] erned by our automobile guest statute, OES 30.110 which provides that a non-paying guest in an automobile has no cause of action against his host “unless the accident was intentional on the part of the owner or operator or caused by his gross negligence or intoxication or his reckless disregard of the rights of others.” The plaintiff, who was 16 years of age at the time of his injury, appears through a guardian ad litem and charges that the defendant, in operating her automobile in which he was a non-paying guest, was “grossly negligent and acted in reckless disregard of the rights and safety of plaintiff.” The defendant was 17 years of age at the time of the mishap, and, like the plaintiff, is represented by a guardian ad litem. The complaint gives the following specifications of its general charge:
1. “Driving at a speed and in a manner that was unreasonable considering the highway, the dark condition, and other conditions then and there existing.”
2. “Failed to keep their vehicle under proper control.”
3. “Failed to keep a proper lookout.”
The accident which underlays this action occurred on the road which leads from Molalla to Woodburn. Some distance prior to the scene of the accident the road makes a curve. The defendant’s ear, after passing through the curve and some space beyond it, left the road and in that manner the plaintiff sustained his injury.
The defendant-appellant presents only one assignment of error. It predicates error upon rulings which denied defendant’s motions for a non-suit and for a directed verdict. Both motions were based upon con[158] tentions that the record contained no evidence of gross negligence.
We shall now consider the issues presented by the motions just mentioned. Since the verdict was in the plaintiff’s favor we will give him the full benefit of all of the evidence. All of it came from witnesses called by him.
At the times material to the issues of this case the plaintiff and the defendant were high school students who lived in or near to Molalla. In the evening of March 14, 1957, the plaintiff, the defendant and some of their fellow students had returned to Molalla from Salem where they had attended a basketball game. Upon reaching Molalla an automobile was placed at the defendant’s disposal and she thereupon invited the plaintiff and two other youngsters to accompany her upon a short ride. The plaintiff seated himself to the right of the defendant and the other two youngsters, Willie Olds and Janice Parnell, took the rear seat. A car driven by a friend, Donald Graves, and containing some other high school pupils was about to head for Woodburn and when it started the defendant, upon the plaintiff’s suggestion, followed it. After the Graves car had reached a point called Blackman’s Corner it paused until the defendant’s car came up. Thereupon the plaintiff and Larry Burk-holder, an occupant of the Graves ear, had a brief conversation. At its conclusion the two cars again resumed their journeys with the Graves car in the lead. The defendant and her friends had nothing in mind as to the trip except to take a ride. According to the plaintiff they engaged in conversation “about the game and this and that.”
One mile beyond Blackman’s Corner a curve occurs in the road. Immediately beyond it was the scene [159] of the misfortune which yielded this law suit. The distance between the two places, that is, between the site of the accident and Blackman’s Corner, is about one mile.
Since the curve in the road through which the defendant’s car had passed shortly before the accident received attention during the trial and is frequently mentioned in the plaintiff’s (respondent’s) brief, we assume that the plaintiff believes that it had a bearing upon the accident. Generally, a motorist can not drive as rapidly in a curve as upon a straight stretch of road. However, the degree of curvature has a material bearing upon the speed with which he can proceed. A sharp curve obviously presents greater difficulties to a motorist than one of a broad sweeping character. Moreover, the pavement is so sloped or banked in some curves that the operation of cars through the curve is materially facilitated.
The sole evidence upon the subject indicates that the defendant’s car did not begin to skid until it had passed through the curve. That evidence was given by one of the plaintiff’s witnesses, a member of the Oregon State Police. There is no contention that he misspoke himself or was guilty of an inaccuracy. How far the defendant’s car went after it had passed through the curve before it showed signs of distress was left undisclosed. That is, no one mentioned how far the car went upon the straightaway before it escaped from the defendant’s control. The road, after it has completed the curve, becomes a straightaway. Although nothing has been called to our attention which tends to indicate that the curve was a factor in causing the accident we will relate the evidence concerning it and also take note of the other evidence pertaining to the other parts of the road.
[160] No witness mentioned the degree of curvature of the turn in the road through which the defendant’s car had passed just before the accident. Nor did any witness, in referring to the curve, use a descriptive term such as sharp, blunt, sweeping or right angle. The sole source of information afforded by the record as to the nature of the turn consists of two photographs which were introduced in evidence by the plaintiff and which show the segment of road in which the turn occurs. The two photographs were taken from opposite directions. One of them shows a part of the turn as it would be seen by a person, like the defendant, who approached it going from Molalla. The other shows the approach to the turn as seen by a person going to Molalla. Each photograph was taken at a distance of possibly 300 feet from the turn. Each shows principally the strip of road leading to the turn. The latter was so far from the camera that it is inadequately represented. The road which extends beyond the turn is indicated only by a line of telephone poles that possibly parallels the pavement. The total number of telephone poles that is shown in the distance beyond the turn is four. The poles appear to indicate a straight stretch of road. It is impossible to determine from the photographs the degree of curvature of the turn. It is clear, however, that if the road parallels the poles it takes off at an angle of much less than 90 degrees. In truth, so far as can be judged from the photographs, the angle appears to be substantially less than 45 degrees. However, attempting to ascertain the degree of curvature by looking at the telephone poles as they are represented in the photographs is scarcely anything better than guess work. Further, the photographs do not enable one to determine, except roughly, whether the [161] turn in the road was abrupt or sweeping. Without knowing whether the turn in the road was sweeping or not it is difficult to decide the rate of speed with which a motorist could essay it. No witness mentioned whether the pavement where the road turns was sloped or banked so as to facilitate the movement of a car through the turn.
ORS 17.250 states that a jury must be instructed by
“* * * the court on all proper occasions:
“(6) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore,
“(7) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.”
If the turn in the road was deemed by the plaintiff to have a material bearing upon this case, we can not understand why something better than these two photographs was not presented as a means of depicting the degree of curvature and the condition of the pavement as to banking at the place where the motorist would make the turn.
The road is hard surfaced to a width of 20 feet. On each side of the pavement a shoulder 4 feet in width, made of gravel, affords more space for the motorist. Beyond the gravel shoulder there lies a drainage ditch four feet deep with sloping, muddy sides. The ditch is about four or six feet broad at its top. Water four or six inches deep is in its bottom. When the defendant approached the turn there was [162] to her right a post bearing two highway signs. One of them was a representation of a bent arrow and indicated a turn in the road. The other bore the legend “45 M.P.H.” The defendant testified that she probably saw these signs.
At the time of the accident the pavement was dry and the weather was clear. The evidence mentions no cars upon the road except the defendant’s and G-raves’. The defendant’s car was in good mechanical condition and her headlights were burning.
The areas to the sides of the road were open, that is, there were no structures or embankments that could conceal a ear operating upon it. Both the defendant and the plaintiff were familiar with the road and had been upon it many times. Both were aware of the turns that one encounters between Blackman’s Corner and the scene of the accident. The defendant had driven a car over the road several times.
Both the plaintiff and the defendant were rendered unconscious by the injuries which they received in the accident and each was unable to recall the car’s passing along the turn in the road. The plaintiff testified that before the car reached the turn he noticed that its speed was 65 miles. He testified that he made no comment concerning that fact, but as the car neared the turn he thought that he mentioned the turn. His words were:
“* * * 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 had ridden with the defendant previously and thought that she was a careful driver. We take the following from his testimony:
“Q There wasn’t anything wrong with her driving as far as you were concerned on this particular [163] 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.”
Donald Graves, the driver of the car which was a quarter mile ahead of the defendant’s, as a witness for the plaintiff, testified that through his rear view mirror he could see the defendant’s headlights. He then gave the following testimony:
“Q Now, can yon 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.”
Graves successfully passed through the turn in the road and went on. Presently, one of his friends in his car discerned that something untoward had happened to the defendant’s car and thereupon Graves turned back.
James Westerberg, the officer of the Oregon State Police whom we have mentioned, came upon the scene of the disaster a few moments after it had occurred. The defendant’s car was then resting upside down on the right hand side of the pavement. The plaintiff was pinned in the car but the other three occupants were lying unconscious near the ditch. Westerberg [164] saw skid marks which, began at a place in the roadway after the curve had been completed. They were in the right half of the pavement. He swore “The skid marks were not in the curve.” Thus, the skid marks began after the defendant’s car had rounded the turn in the road. How far they began from the curve was not disclosed by any witness. They extended across the four foot shoulder of the roadway and then appeared on the other side of the ditch. When the car had reached that point it struck a telephone pole and broke it in two. By the time it struck the telephone pole it had gone 113 feet from the place where the skid marks began. Although the bottom of the telephone pole was not moved — even though it was broken — the top was somehow moved 18 feet. The car’s collision with the telephone pole apparently changed the ear’s course and thereupon it traveled 84 feet more to the right half of the pavement where it came to rest upside down. Its entire course from the place where the skid marks began to the spot where the car came to rest was 197 feet.
The defendant, as a witness called by the plaintiff, testified that she could not recall the incidents of the accident. The following is taken from her testimony :
“Q Do you remember the car starting to skid?
“A No.
“Q You had just about made the curve, had you not, and completed the curve when the car started skidding?
“A All I remember is the car starting to go around the curve.”
Photographs of the defendant’s car show that its top and sides were badly crushed. The two occupants [165] of the car’s rear seat, Willie Olds and Janice Parnell, were not called as witnesses.
The above is all that the record reveals. It will be noticed that no one mentioned what caused the car to leave the roadway. Likewise, no one indicated the car’s speed as it rounded the turn. However, the fact that the car got across the ditch, broke in two the telephone pole and then, upon returning to the pavement, overturned indicates that it had considerable momentum.
Since the plaintiff based his case upon charges of recklessness and gross negligence it was incumbent upon him to support those charges with evidence. The specifications of the general charges, as we have seen, are:
1. “Unreasonable speed.”
2. “Failure to keep the vehicle under proper control.”
3. “Failure to keep a proper lookout.”
We are aware of no support for the third phase of the charge, and since the plaintiff’s brief calls attention to none we will go on to the other two specifications of the general charge.
The specification that the defendant failed to keep her car under control was undoubtedly true, for surely the defendant did not intentionally take her car upon the erratic course which the evidence discloses. But the issue still remains as to whether the car’s escape from the defendant’s control was due to gross negligence upon her part.
If the car’s escape from the defendant’s control was due to her negligence, then the only negligent conduct which the evidence seeks to attribute to the defendant is the rate of speed with which she operated [166] the car. It will be recalled that no witness was able to state the car’s speed as it rounded the curve. The plaintiff expressed the belief that its speed was 65 miles per hour as it neared the highway sign. Other evidence, also produced by him, indicates that the car’s speed was 55 or 60 miles per hour.
We will now consider whether the record contains evidence from which a jury could infer negligence. The plaintiff, whose testimony must be weighed in the same manner as that of any other witness, Kaiser v. States Steamship Company, 203 Or 91, 276 P2d 410 (1954); Longview Fibre Co. v. Johnston, 193 Or 385, 238 P2d 722 (1952); Tate v. Emery, 139 Or 214, 9 P2d 136 (1932), testified that the automobile was going 65 miles per hour shortly before the accident and that it neared the curve “going too fast.” The defendant, if the plaintiff is believed, had apparently been maintaining this speed from Blackman’s Corner. There is authority that under proper circumstances the speed of an automobile at the place of an accident may be proved by evidence of speed at a point close by the scene of the accident. Pyle v. Wilbert, 2 Wash 2d 429, 98 P2d 664 (1940); MacCurdy v. United States, 143 F Supp 60 (1956) affd 246 F2d 67 (1957), cert den 355 U S 933, 78 S Ct 415, 2 L Ed 2d 416 (1957). Honeywell v. Turner, 214 Or 700, 332 P2d 638 (1958), in which the sole testimony as to the speed of a car was that of a witness who estimated it to be “between 40 and 60 miles per hour” and that of the defendant who claimed it was “about 50 miles per hour,” held that, taking the evidence in the light most favorable to the plaintiff, the speed could be placed at about 60 miles per hour. Similarly, the jury in the present case could permissibly infer that the defendant’s speed at the curve was possibly as high as 65 miles per hour.
[167] The plaintiff’s testimony is corroborated to some extent by that of the witness Graves and also by the physical facts surrounding the accident itself. The automobile skidded 113 feet, part of the distance through a muddy ditch, to break a telephone pole off at its base. After this impact the car still had enough impetus to carry it another 84 feet, back to the pavement where it assumed an overturned position. In Greenslitt v. Three Bros. Baking Co., 170 Or 345, 133 P2d 597 (1943), a case not involving the guest passenger statute, this court held that where the driver, of a baking truck applied his brakes immediately after striking a man on the highway and came to a halt 124 feet from the point of impact, hurling the body 68 feet, the jury was entitled to infer excessive speed from these facts alone. And in McVay v. Byars, 171 Or 449, 138 P2d 210 (1943), a case involving the collision of two cars at an intersection, where the plaintiff charged the driver of the second car with driving at too rapid a speed, we made the following statements :
“* * * There was evidence that defendant’s car was ‘going forty miles an hour’; and that it was traveling at ‘a pretty good speed’. Furthermore, the speed of the car was sought to be deduced from the force of the collision, from the serious character of the injuries which plaintiff and one of defendant’s passengers received as a result thereof, and from the effect of the collision upon the ears. As to the latter, at least, we cannot say that it did not tend in some measure to prove the speed at which defendant was driving. Shairer v. Johnson, 128 Or. 409, 412, 272 P. 1027; Goodale v. Hathaway, 149 Or. 237, 244, 39 P. (2d) 678. Whether such speed was excessive or not, under the circumstances, was for the jury to determine.”
[168] In addition to all of the foregoing, the indicated speed for the curve, which is revealed by the highway sign, was 45 miles per hour.
The road upon which the defendant was driving at the time of the accident was level and paved to ample width. Although it was night time, nevertheless the atmosphere was clear and the pavement was dry. Only one car was in sight, it being Graves’ car. The photographs which we have mentioned show only two houses in the large area which they portray. Both houses appear to stand 100 feet or so back from the road. We have mentioned the fact that the area through which the defendant drove was open country. It was flat, level farm land. The photographs do not show any barns, shrubs, billboards or other obstructions which could conceal from a motorist upon the road a vehicle approaching from some other place. Likewise, they show no intersecting road and no witness mentioned a thoroughfare of that ldnd.
ORS-483.102 says:
“No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway, the hazard at intersections and any other conditions then existing.”
Under that provision, the defendant’s act in driving at the rate of 65 miles per hour was unlawful only if it was not “reasonable and prudent, having due regard to the traffic, surface and width of the highway, the hazard at intersections and any other conditions then existing.”
ORS 483.104 makes provision for designated speeds. None of those enumerated in that section of our laws is applicable to the situation before us except [169] the following: “fifty-five miles per hour in any other locations.” The area in question falls within the category of “other locations.” Therefore, the defendant’s conduct in driving at the place in question at the rate of more than 55 miles per hour, if in fact she so drove, constituted “prima facie evidence of violation of OES 483.102.” That is, of a speed “greater than is reasonable and prudent.” However, her violation of OES 483.102 would establish nothing more than ordinary negligence.
If the defendant was guilty of nothing more than ordinary negligence, the judgment which the circuit court entered in the plaintiff’s favor must be reversed because one of the purposes of OES 30.110, supra, is to relieve the host of liability to his social guest from the consequences of ordinary negligence. He is liable to his guest only if the injury was intentional or was due to recklessness, gross negligence or intoxication. The complaint makes no charge of intoxication or intentional injury. It charges, in addition to gross negligence, recklessness. We do not find in the record any evidence of recklessness as that term is defined in Eestatement of the Law, Torts, § 500. However, we shall go on and determine whether or not the record contains evidence which can support a finding of gross negligence.
The term “gross negligence” has defied all efforts to convert it into a formula made up of percentages or other distinct quantities which will enable a judge, or a lawyer, to appraise the driving of a motorist which is under challenge and determine with certainty whether it amounted to gross or only ordinary negligence. However desirable it would be to distill from the large volume of precedents that are in the Eeports [170] a test or other criterion which would have touchstone attributes, seemingly the term “gross negligence” is determined to remain a maverick and repulse all efforts to subject it to the exactness of a formula.
But some progress can be made in the direction of certainty if we start with a case in which the evidence submitted by the plaintiff is commonly deemed proof of nothing more than ordinary negligence. For example, evidence that a defendant drove upon a dry, lonely, open, paved, level, country road of ample width at a speed of no more than 65 mies per hour is generally regarded as evidence of nothing more than ordinary negligence, if it is deemed to establish even that much. Accordingly, if the burden of proof rests upon a plaintiff to establish gross negligence, and he has no evidence except that which shows that the defendant drove on a dry, lonely, open, paved, level country road of ample width at a speed of no more than 65 miles per hour, then we have a problem of burden of proof. One of the purposes of OBS 30.110, as we have seen, is to relieve a non-paid host from liability to his guest if the host was guilty of nothing more than ordinary negligence. Therefore, the guest must point to something in the record which shows that it establishes upon the part of the host more than ordinary negligence. It must give an inkling of willfullness, foolhardiness, disregard of warnings, an abandonment to revelry or the adoption of an attitude of “I don’t care what happens.” If the guest’s evidence establishes nothing of that kind and can go no further than to show that his host’s driving was of the kind which the courts regarded in the past as nothing more than ordinary negligence, his case must fail for he has not discharged the burden of proof.
[171] This court has held many times that the mere presence in a record of evidence showing that the driver was guilty of ordinary negligence does not warrant a finding in favor of a social guest that the driver operated in a grossly negligent manner. Burrows v. Nash, 199 Or 114, 259 P2d 107, made this pertinent ruling:
“* * * a violation of the "basic rules does not, in and of itself, constitute gross negligence # # # »
Shortly it added:
“* * * Combined with other conditions, a violation of the basic rule may be considered upon the question of gross negligence * #
Then the decision engaged in this observation:
“* * * it certainly would be an unusual case, indeed, where speed, in and of itself, would constitute gross negligence * *
Baird v. Boyer, 187 Or 131, 210 P2d 118, is an illustration of the application of the rule just stated.
In Ross v. Hayes, 176 Or 225, 157 P2d 517, the defendant, as host driver, was driving through what the decision mentioned as an “S curve” at a speed of 40 to 45 miles an hour. The pavement for a space of 100 to 150 feet was covered with frost “making the road surface extremely slippery.” At that point the defendant’s car skidded and collided with a truck. The plaintiff, as a non-paying guest, sought the recovery of damages on a charge of gross negligence. Our decision, in reversing judgment for the plaintiff, declared:
“Mere proof that the driver of the automobile was guilty of ordinary negligence in the opera[172] tion of the ear does not require in all cases the submission to the jury of the question of whether he was guilty of gross negligence. * * *
“In the ease at bar there is a total failure of proof of gross negligence on the part of defendant. The manner in which he operated the automobile did not indicate an indifference on his part to the probable consequences of his act or to the rights of others. Nothing connected with Ms driving resembled ‘an I-don’t-care-what-happens mental attitude.’ ”
In Bobich v. Rogers, 258 Mich 343, 241 NW 854, the defendant, as host driver, sought to round a turn in the road at a rate of speed which the plaintiff, his non-paying guest, termed excessive. In reversing a judgment for the plaintiff the decision said:
“* * * Conceding that defendant was negligent in making the turn at Mgh speed, it would not constitute wilful and wanton misconduct.”
Then the decision mentioned the plaintiff’s claim that the defendant’s rate of speed violated a Michigan traffic statute, and the court ruled:
# Violation, if any, of that statute does not constitute the gross neghgence or wanton and wilful misconduct requisite to maintenance of an action under the guest act.”
We see from the decisions of which we just took note that even if the unfortunate accident took place in the curve, the evidence presented by the plaintiff does not suffice to warrant a finding of gross negligence. If it could he assumed that the car left the pavement immediately after it had rounded the turn, and that its escape from the defendant’s control at that point was due to the lurch, sway or centrifugal force which was imparted to it in rounding the curve, [173] yet in such an event the defendant’s failure to have mastered the situation was momentary only and would fall within the rule employed by cases such as Gantenbein v. Huckelberry, 211 Or 605, 315 P2d 792. Her fault, if any, would not amount to gross negligence.
The record contains nothing which indicates that the defendant was not attentive to her duties as the operator of the car, nor does it intimate that she was not duly solicitous of the safety of her guests. No one contends that she took her hands off the steering wheel, her eyes off the road or transferred her attention to the conversation. The plaintiff sat along side her and since he watched, at least at times, the speedometer and likewise noticed the highway sign as the car neared it, it is safe to infer that if the defendant had relaxed in her duties to the operation of the car he would have noticed it. There is nothing in the record of the kind mentioned in Keefer v. Givens, 191 Or 611, 232 P2d 808, and Turner v. McCready, 190 Or 28, 222 P2d 1010; Reese v. Bridgmon, 217 Or 290, 340 P2d 573; and Gonzales v. Curtis, 217 Or 561, 339 P2d 713, concerning warnings given and ignored or the adoption of an “I-don’t-care-what-happens attitude” which could transmute the defendant’s ordinary negligence, if any, into gross negligence. The fact that the evidence does not disclose with any degree of precision the curvature at the turn renders it difficult to appraise fairly the defendant’s driving.
As we said before, the plaintiff presented evidence from which the jury could have found, and probably did, that the defendant’s speed was negligent, hut, in our opinion, he presented no evidence from which anything more than that could have been inferred. That is, he did not present evidence from which the [174] jury could have found that the turn in the road was so sharp and the defendant’s speed was so rapid that a juror could say that only the foolhardy and those who gave no heed to the safety of their guests would have attempted the turn in that manner. In other words, we do not find in the record evidence which could warrant a finding of gross negligence.
The assignment of error is sustained. The challenged judgment is reversed.