On a dry, clear, midsummer night plaintiff’s decedent left a country tavern on the west side of a 4-lane, 40-foot paved highway, intending to walk to some tourist cabins located directly across the road. There were no other buildings in the vicinity. Lighted signs in front of the tavern and cabins illuminated the road somewhat. Decedent’s eyesight was good. Some distance to the south the highway curved gradually, but there was a clear, unobstructed view of the payment in that direction for several hundred feet. Defendant was driving her automobile north in the most easterly lane. Her lights were on. No other automobiles or traffic were in sight in either direction. A.collision between decedent and defendant’s left front fender occurred in the most easterly lane, blood and skid marks indicating that at the instаnt of impact decedent was on the most westerly part of that lane. He was killed instantly. Shortly after the accident defendant told an officer that she had not seen decedent until she was practically upon him. A witness for plaintiff testified that from what he learned he knew that defendant saw the accident. There were no other eyewitnesses.
■ Defendant was present at trial but was not called as a witness. Plaintiff offered no proofs concerning decedent’s actions from the time he lеft the tavern until the accident. There is nothing in the record from which it might be inferred that he was free from contributory negligence. Plаintiff has con
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tended, however, both oh trial and on appeal, that it should be held that there were no eyewitnesses and thаt, therefore, decedent must be presumed to have been free from contributory negligence. As authority he cites
Adams
v.
Iron Cliffs Co.,
In seeking to reconcile the holdings in the above cases citеd by plaintiff with those cited by defendant, it might seem that, with certain exceptions, a possible generalization might be drawn to the effect that the availability of the presumption to a plaintiff’s case depends upon the failure of the surviving defendant to have seen enough of decedent’s actions
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prior to and at the time of the accident to constitute defendant an actual eyewitness. The application of that test will hardly serve, however, to reconcile the adoptiоn of the presumption in
Petersen
v.
Lundin, supra; Fenn
v.
Mills, supra;
and
Hinchey
v.
J. P. Burroughs & Son Co., supra,
with its rejection in
Collar
v.
Maycroft, supra,
and
Faustman
v.
Hewitt, supra,
the defendant in each of those cases, as in the instant case, having seen the decedent but an instant before the accident when it was too late for either to avoid it. That the amount of opportunity for and length оf time during which defendant observed decedent prior to the accident, if at all, are factors to which but scant, if any, significаnce attaches, in the judgment of this Court, would appear from our failure to so much as touch upon or mention them in our оpinions in
Foote
v.
Huelster, supra,
and
Peck
v.
Hampel, supra,
this Court having contented itself in the latter case with the observation that defendant was presumed to have seen dеcedent before the accident and, hence, to have been an eyewitness, thus removing the presumption of deсedent’s due care. A further possible explanation of the apparently irreconcilable conflict in the holdings оf this Court on the subject may be that, with the single exception of
Delfosse
v.
Bresnahan,
If it were to be assumed, howevеr, that defendant did not see decedent at all before the accident and that there were, accordingly, no surviving eyewitnesses whatsoever, the presumption of decedent’s freedom from contributory negligence should nevertheless be dеemed to have been overcome and rebutted by proofs of the physical facts in this case, which show decedent to have been guilty of contributory negligence as a matter of law. This, we think, follows from our holdings in
Elrich
v.
Schwaderer,
Affirmed, with costs to defendant.