The opinion
Former opinion adhered to September 7, 1915.
On Petition for Rehearing.
( 151 Pac. 463 .)
Messrs. Woodcock, Smith & Bryson, for the petition.
Mr. L. M. Travis, Mr. A. K. Meck and Messrs. Foster & Hamilton, contra.
Department 2. Opinion by
Mr. Chief Justice Moore.
2. In a petition for a rehearing it is insisted that, the witness George Catching having testified in effect that immediately prior to the accident he was in Springfield, Oregon, walking south on Seventh Street toward and about 300 feet from Main Street, when he saw an automobile driven east on the latter street, his sworn declaration shows he was too far from the passing car to enable him, in the space of 100 feet, in addition to the width of Seventh Street, to determine the speed of the vehicle, and, such being, the case, an error was committed in permitting him, over objection and exception, to express an opinion on the subject.
A court will take judicial notice of the laws of nature: Section 729, subd. 8, L. O. L. Based on this *274 rule, it has been held that in an action to recover damages alleged to have been caused by the defendant’s negligence, if the plaintiff’s testimony is irreconcilable with physical facts, the existence of which are conclusively established, the court should instruct the jury not to consider such testimony: Thompson, Trials (2 ed.), § 2264; Smitson v. Southern Pacific Co., 37 Or. 74 ( 60 Pac. 907 ); Wolf v. City Ry. Co., 50 Or. 64 ( 85 Pac. 620 , 91 Pac. 460 , 15 Ann. Cas. 1181); Payne v. Chicago etc. Ry. Co., 136 Mo. 562 ( 38 S. W. 308 ). The distance of the witness from the car when he saw it pass the space of his vision, the- time the vehicle could possibly have been seen by him, and the amount of light then existing at that place, were factors from which to determine whether or not he could have so carefully observed the automobile as to enable him to state, in his opinion, how fast it was moving. If the evidence had disclosed that the witness was blind, or his sight impaired, or that at the time there was no light at the crossing, or that he was at such a distance from the car as to preclude the possibility of seeing it, the court might legally have excluded his testimony or directed the jury not to consider it. Catching’s sworn statements, however, are reasonable, and it was the exclusive province of the jury to determine whether or not his means of observation were such as to entitle his testimony to be worthy of belief. Under the circumstances detailed, the court could not, as a matter of law, have excluded his testimony or instructed the, jury not to consider it.
The former opinion is therefore adhered to.
Affirmed. Approved on Rehearing.
Mr. Justice Bean, Mr. Justice Benson and Mr. Justice Eakin concur.