We think that an inference could reasonably be drawn from the whole of the evidence that he traveled these six feet in the crosswalk or at least as close thereto as to give him the protection of the right-of-way statute. Lynch v. Clark et al, 183 Or. 431, 442, 194 P.2d 416; Manning v. Helbock, supra, 135 Or at 267. * * *" Myhre v. Peterson, 233 Or. 470 at 473, 474.
This statute obviously contemplates that the results of blood alcohol tests are admissible in civil actions to show intoxication. Plaintiff relies on Lynch v. Clark et al, 183 Or. 431, 194 P.2d 416 (1948) in which it was held that evidence of blood alcohol content was not sufficient, standing alone, to create an issue of negligence for the jury. The opinion points out that when the issue is negligence, the question for the jury is conduct, not intoxication per se. The court also clearly pointed out, however, that where there is evidence of negligent conduct, independent evidence of intoxication may properly be considered by the jury:
However, it is not negligence per se. Chandler v. Harger, 253 Iowa 565, 570-572, 113 N.W.2d 250, and citations; Cramer v. City of Burlington, supra; Ward v. Chicago, St. P., M. O. Ry. Co., 85 Wis. 601, 55 N.W. 771, 772; Prosser, Law of Torts, Third Ed., section 32, page 157; 38 Am.Jur., Negligence, section 203, pages 883-884. Before a drunken driver can be held liable for injuries to another or barred from recovering for his own injuries, his intoxicated condition must be translated into outward conduct which is negligent and bears a causal relationship to the injury. American Employers' Ins. Co. v. McLean, 5 Cir., 127 F.2d 275; Lynch v. Clark, 183 Or. 431, 194 P.2d 416, 422-423; Allan H. McCoid, Intoxication and Its Effect Upon Civil Responsibility, 42 Iowa L.Rev. 38, 46-47, 53. Evidence of an intoxicated condition is properly admissible as one of the circumstances surrounding conduct showing a lack of due care under the circumstances.
We think that an inference could reasonably be drawn from the whole of the evidence that he traveled these six feet in the crosswalk or at least as close thereto as to give him the protection of the right-of-way statute. Lynch v. Clark et al, 183 Or. 431, 442, 194 P.2d 416; Manning v. Helbock, supra, 135 Or at 267. Of course, the position of the plaintiff in the street after the accident is evidence which may be considered as pointing to a different conclusion, but, since a person colliding with an automobile may be carried a considerable distance before falling to the ground, this circumstance is not conclusive. Cases from other jurisdictions supporting the view we take of this question are MacHale v. United States, 81 F. Supp. 372 (WD Wash 1948); Warshaw v. Reichman, 145 NYS2d 237; Lambrecht v. Archibald, 119 Colo. 356, 203 P.2d 897; Bohnenkamp v. Hibberd (Ohio App) 41 N.E.2d 259; Novak, Admx., etc. v. Chi C Dist Tr Co et al, 235 Ind 489, 135 N.E.2d 1.
" (Emphasis supplied.) The facts in the case of Lynch v. Clark (1948) (Ore.), 194 P.2d 416, closely resemble the present case. The court there said at pages 420-421:
Whether plaintiff was negligent in failing to keep a better lookout for approaching vehicles was a question for the jury. Yates v. Stading, 219 Or. 464, 347 P.2d 839; Barnes v. Winkler, 216 Or. 130, 337 P.2d 816; Lynch v. Clark et al., 183 Or. 431, 194 P.2d 416; Martin v. Harrison, 182 Or. 121, 180 P.2d 119, 186 P.2d 534; Dixon v. Raven Dairy, 158 Or. 186, 75 P.2d 347; Keys v. Griffith, 153 Or. 190, 55 P.2d 15; and Hecker v. Union Cab Co., 134 Or. 385, 293 P. 726. Affirmed.
'" See also Barnes v. Winkler, 216 Or. 130, 337 P.2d 816, and Lynch v. Clark et al., 183 Or. 431, 194 P.2d 416. Under the facts of this case, we are of the opinion, since the plaintiff looked and saw the glow of the headlights of the defendant's automobile at some distance and then started across the highway, the question of whether or not he used that degree of care which a reasonably prudent person would have used under the same circumstances in attempting to cross the highway was a question for the jury.
The appellant concedes there is no Kansas case covering the precise point involved concerning the admission of evidence derived from a blood test to show intoxication prior to the introduction of other competent evidence tending to show contributory negligence. Reliance is placed upon Lynch v. Clark et al., 183 Or. 431, 194 P.2d 416, where the Oregon Supreme Court held that in the absence of other evidence tending to show contributory negligence, evidence derived solely from a blood test indicating intoxication was insufficient to present a jury question of contributory negligence. The opinion of the Oregon court is well reasoned and one to which this court can subscribe as good law.
Purely speculative inferences or conclusions do not constitute substantial evidence. Lynch v. Clark et al., 183 Or. 431, 440, 194 P.2d 416. As we originally pointed out, the physical facts in this case demonstrate beyond any question that the impact occurred at least three feet north of the center line of the highway; the broken glass and radio aerial lay on and to the south of the center line. How this debris got there no one knows, nor could know, except that it was thrown by and from the rapidly moving vehicle at some moment following the impact.
Walker v. Penner, 190 Or. 542, 551, 227 P.2d 316; Lynn v. Stinnette, 147 Or. 105, 31 P.2d 764. However, before one can be said to be under the influence of intoxicating liquor, it is necessary for someone to testify that some one of the effects of such drinking was perceptible to him ( Lynch v. Clark, 183 Or. 431, 449, 194 P.2d 416; State v. Noble, 119 Or. 674, 678, 250 P. 833) or that there be other testimony evidencing such a condition ( Walker v. Penner, supra, at page 551). The evidence of the presence of bottles containing or which had contained intoxicating liquor, standing alone, is not evidence that the driver was intoxicated or under the influence of liquor at the time of the collision.