The opinion
GUTHRIE, Justice
(dissenting).
I must dissent in this case. It is my impression that the majority of the court has been influenced by the fact an accident occurred with horrible and tragic results. 1 It is my view this decision is contrary to our oft-repeated rule that speculation, conjecture, or guess can never be the basis for liability 2 as set out in the majoirty opinion. In arriving at this result the court has introduced the doctrine of res ipsa lo-quitur or some species thereof into our law insofar as it affects motor vehicle accidents, or has said this rule is in effect except in certain circumstances. It is suggested by this writer that it is unfair to litigants, trial lawyers and trial courts generally not to fully explain and note such modification if it is to be made.
There is no occasion for a reiteration of the factual situation herein but in the writer’s view there is complete absence of any evidence which suggests any definite cause for this accident.
In consideration of this case it is my view that the “no eye witness” rule is applicable herein because the survivors are suffering from amnesia or memory loss and there is no person who could testify as to what happened immediately before or at the time of the accident. 3 This rule which creates a presumption that the deceased was exercising due care in preservation of his life and the well-being of others has been recognized by this court. 4 It has even been held that in the absence of convincing evidence to the contrary it will be presumed a deceased person exercised reasonable care. 5 If we are to depart therefrom this exception should be explained. In addition thereto it may be suggested there is a further presumption arising from the former-mentioned rule in favor of a *529 deceased defendant that he was not violating the speed limit at the time of the accident. 6
I am disturbed by the statement in this opinion quoting plaintiff’s argument that there was evidence “to support the conclusion that defendant was guilty of reckless driving in that his destination was straight ahead and then to the right of the four-lane Randall Avenue while his car struck the abutment at a bizzare [sic] angle suggesting that the car was neither in the right lane, the left lane, nor the left turn lane, but in no lane and every lane.” Counsel supports this unique statement by reference to Exhibit 1, which is a rough plat showing the car drove directly into the abutment in a straight line with no indication or attempt to show that it occupied or was driven in any other course or lane. This exhibit was drawn by plaintiff’s witness Ortega, who did not testify to any such facts, and shows no suggestion of a “bizarre angle” nor that it was not “in the right lane, the left lane, nor the left turn lane, but in no lane and every lane." (Emphasis supplied.) Strangely, shortly following the quoted statement appellant’s brief contains the following:
“ * * * there is evidence and testimony that the automobile did not brake, slow down or swerve but smashed into the clearly visible abutment * * (Emphasis supplied.)
It is difficult to reconcile these arguments and demonstrably improper, in my view, to repeat them in the opinion.
The majority bases its finding upon three elements:
1. Evidence of exceeding the posted speed limit.
2. Driving into the traffic-light pole with great force.
3. The fact that the deceased was violating statutes of this state making it a misdemeanor to have alcoholic beverages in his possession, having brought beer from Colorado into the state and having a can of beer in his hand as he entered the base just before the accident and having consumed some beer.
In the writer’s view the evidence of exceeding the posted speed limit is of little consequence, as its relationship to the cause of this accident is totally unexplained. In addition thereto the only competent evidence with regard to speed is that the car was being driven between 30 to 35 miles per hour but in a careful and prudent manner within 350 feet of the point of the accident. There is mention made of the speedometer being stuck at a point indicating a speed of 34 miles per hour. There is no evidence that the speed at which a speedometer stops is indicative of the speed at the time of the accident, and the writer refuses to take judicial notice thereof. If this be a fact, it might be a proper subject of testimony and if we are to suggest conjecture, as I feel the majority has done, it might be suggested that upon impact the needle might have been caused to gyrate wildly, stopping when some object obstructed it in its further flight. This is certainly a proper burden upon the plaintiff.
The driving into the traffic-light pole with great force is inexplicable and in my view carried little probative weight other than that was the cause of the injuries, particularly in light of the presumption of care which I have heretofore mentioned. There is no evidence that the damage to the car was caused by excessive speed or the speed of the car at impact. If this were probative this too is plaintiff’s burden.
In the absence of any testimony that the drinking had affected the driving of the deceased, and the fact is there is affirmative showing in the plaintiff’s case it had not, a suggested violation of this statute is immaterial. The possession was solely evidence of a violation of that law alone. The car might have contained an unregistered' machine gun or the proceeds of a *530 bank robbery — all in violation of a statute, but certainly with no probative force as applied hereto. A statutory violation can not be material unless there is other evidence that violation of this statute was the proximate cause of the accident. 7
It may be suggested, too, that we have heretofore held that excessive speed does not constitute gross negligence nor does mere momentary inattention constitute gross negligence, 8 although speed may become so excessive that it constitutes willful misconduct or gross negligence, 9 an element missing in this case.
Although denying the propriety of speculation, I believe it can be illustrated there is no evidence of negligence of any character in this record and that it shows a completely inexplicable accident; that the cause could be resolved only in the minds of the fact finders based upon their guess and speculation. It might be suggested that a jury believing the plaintiff was entitled to recovery could speculate and guess that the driver was angry with himself or some of the occupants and deliberately drove into the obstruction; that although there is no evidence affecting this he became momentarily paralyzed from the consumption of the alcoholic beverages. Fact finders not believing plaintiff was entitled to recovery could speculate that the steering mechanism had suddenly locked; some strange and hostile insect had alighted and bitten him on the tip of the nose, blinding him; that his driving was interfered with by passengers. These are but a few of the possibilities of a selection of “goodies” for rampant guesses.
The case of Cederburg v. Carter, Wyo., 448 P.2d 608 , is factually different, there being evidence of speed from 50 to 70 miles per hour and it being demonstrated and admitted this speed was the cause for loss of control and leaving the road. It might be considered this is illustrative of the case wherein speed may be evidence of such negligence.
Because this will have no value as precedent no exhaustive discussion or citation has been attempted. It is my view from the facts and authority cited that plaintiff failed of his burden and the judgment should be affirmed.
. See Langdon v. Baldwin-Lima-Hamilton Corporation, Wyo., 494 P.2d 537, 538 , where an instruction was given stating in substance the mere fact an accident happened raised no question of negligence and was urged as error. Also, 29 Am.Jur.2d Evidence, § 211, p. 262, n. 11.
. Gerdom v. Gerdom, Wyo., 444 P.2d 34, 37 .
. Spry v. Lamont, 257 Iowa 321 , 132 N.W. 2d 446, 448 ; Plumb v. Minneapolis and St. Louis Railway Company, 249 Iowa 1187 , 91 N.W.2d 380, 385 ; Schultz & Lindsay Construction Company v. Erickson, 8 Cir., 352 F.2d 425 , 434-435; 22 Am.Jur.2d Death, § 216, p. 762.
. Gisli v. Colson, Wyo., 475 P.2d 717, 720 ; Culver v. Sekulich, Wyo., 344 P.2d 146, 154 ; Wilhelm v. Cukr, 68 Wyo. 1 , 227 P.2d 988, 991 , rehearing denied 230 P.2d 507 , 508; and in addition see 29 Am.Jur. 2d Evidence, § 211, p. 262.
. Drake v. Moore, 184 Kan. 309 , 336 P.2d 807, 812 .
. Snider v. King, Mo.App., 344 S.W.2d 265, 277 .
. Checker Yellow Cab Co. v. Shiflett, Wyo., 351 P.2d 660, 663 .
. Moore v. Kondziela, Wyo., 405 P.2d 788, 789 .
.Meyer v. Culley, 69 Wyo. 285 , 241 P.2d 87, 94 ; Norfolk v. State, Wyo., 360 P.2d 605, 608 .