York v. York, 212 N.C. 695 (1938)

Jan. 5, 1938 · Supreme Court of North Carolina
212 N.C. 695


(Filed 5 January, 1938.)

1. Husband and Wife § 6—

In'tbis State a wife has the right to bring an action for actionable negligence against her husband.

2. Automobiles § 20b—

The negligence of the driver will not be imputed to a guest in the car unless the guest is the owner of the ear and has some kind of control over the driver, or unless they are engaged in a joint enterprise or joint adventure.

3. Trial § 22b—

On a motion to nonsuit, the evidence which makes for plaintiff’s claim is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. O. S., 567.

4. Automobiles §§ 17, 18g — Evidence that skidding was the result of negligence held sufficient to be submitted to the jury.

■ Evidence that defendant drove his car 55 to 60 miles per hour on a wet highway into a sharp curve, that the tires of the ear were worn smooth, and that the car skidded, resulting in the injury in suit, is held sufficient to be submitted to the jury, it being for the jury to determine whether the skidding was the result of defendant’s alleged negligence in operating the ear and negligence in failing to equip his car with safe tires.

5. Automobiles § 22 — Evidence held not sufficient to require submission of issue of contributory negligence of guest in car.

In this action by a wife against her husband to ■ recover for injuries sustained when the car driven by her husband skidded on a curve, there was no evidence that the wife knew or had reasonable ground to believe that the tires on the car were worn smooth, and no evidence that the parties were engaged in a joint enterprise, or that the wife had any control over the operation of the ear. There was some evidence that the wife remonstrated and asked her husband to slow down the speed of the ear. Held: There was no sufficient evidence of contributory negligence on the part of the wife requiring the submission of the issue to the jury.

6. Appeal and Error § 39d — Exclusion of impeaching evidence held not prejudicial where effect thereof was obtained by cross-examination.

The witness made a written statement shortly after the accident in suit. On cross-examination she testified that she did not remember a statement therein contradictory to her examination in chief, but stated she did not deny having made such statement in the writing. Held,: The refusal of the trial court to permit defendant’s counsel to have the witness read the statement for the purpose of impeaching the witness is not prejudicial error, since the identical impeaching evidence was obtained on the cross-exaniination.

*6967. Appeal and Error § 6a—

An exception to remarks of counsel on the argument must be taken at the time in order for an assignment of error based thereon to he considered on appeal.

8. Trial § 7 — Whether counsel should he permitted to comment on failure of party to take stand to refute personal charges held for court.

In this action the method by which an insurance adjuster obtained written statements offered in evidence was attacked, and the trial court permitted plaintiff’s counsel, over defendant’s objection, to comment on the failure of the adjuster to take the stand. Held: The failure of the adjuster to take the stand and rebut the charges as to his methods was a circumstance to be considered by the jury, even though he was not a party, and whether the comment should be permitted was within the sound discretion of the trial court.

9. Automobiles § 18h — Instruction in regard to legal effect of speed in excess of 45 miles per hour held not prejudicial in this case.

An instruction that the jury might find, but were not required to find, that a Speed in excess of forty-five miles an hour was unlawful, but that if they should find such speed was unlawful it would constitute negligence per se, N. O. Code, 2621 (46), is held not prejudicial under the evidence in this case tending to show special hazards in that defendant was driving into a curve on wet pavement with worn, slick tires, at a speed in excess of forty-five miles per hour.

10. Evidence § 47—

The admission of testimony of certain physicians as to plaintiff’s injuries held not error under authority of Keith v. Gregg, 210 N. C., 802.

Barnhill, J., dissenting.

Stacy, O. J., and Winborne, J., concur in dissent.

Appeal by defendant from Pless, J., and a jury, at March Civil Term, 1937, of Wake. No error.

This is an action for actionable negligence brought by plaintiff against defendant to recover damages. The defendant denied negligence and set up the plea of contributory negligence. The plaintiff and defendant are husband and wife, have been married to each other for 34 years and have five children.

The defendant had an engagement in Charlotte, N. C., on 3 June, 1935, .about 12:30 p. m., to have a contract signed, and left Raleigh about 9 o’clock — about a half hour late — in his car taking the plaintiff, his wife, who was riding with him on the front seat, and their daughter Mabel, who was riding on the rear seat. The plaintiff testified, in part: “It was cloudy later on and it was cloudy when we left Albemarle. It was not raining when we left Albemarle. I can’t recall exactly at what place we first saw signs of rain after we left Albemarle. We saw the rain coming in front of us. I was able to tell that the rain was approaching us. Q. At what speed was your husband driving his auto*697mobile at tbe time you were traveling from Albemarle and saw the rain approaching? Ans.: I would say 55 or 60 miles an hour. The road curved a little to the left and then to the right* and straightened out. . . . Q. Have you got any estimate in your mind ? Ans.: The rain was only for such a minute, a shower, we must have been right near the curve or right at it when the rain struck us. Q. Did your husband, when the rain struck you, slow up at any degree at all? Ans.: No. Q. I believe you say it was 55 or 60 miles an hour? Ans.: Yes. Q. And he did not slow up? Ans.: No. Q. Did the car go around the first curve to the left ? Ans.: It went partly around and then he tried to straighten — I thought we were going over that embankment — and he got it straightened and went over the embankment on the other side. Q. You were in the midst of the first curve when what happened to the car ? Ans.: When it went to straighten out. Q. After passing the first curve ? Ans.: Yes. I don’t recall his slowing his car at all while we went around the first curve. The car skidded when we were going around the first curve. When we got to the second curve the car went over the embankment on the right. It first went to the left and then to the right. I would not know how close the car was to the curve when the rain struck. Mabel called attention to the rain coming. My husband could hear her. I couldn’t say how long that was before reaching the curve. I don’t recall my husband’s making any comment at that time. When the car went off the road the last thing I remember was hearing that horrible sound of the motor and the next thing was I was being pulled out of the car.” The plaintiff was permanently injured. Several physicians testified to this effect. The plaintiff’s testimony, in substance, was corroborated by her daughter, Mabel York.

Mabel York testified, in part: “Q. State whether or not after you left Albemarle and before the injury there was any conversation between your mother and yourself on the one hand and your father on the other? Q. Was there a conversation? Ans.: Yes. Q. What was said? Ans.: Mother told daddy to slow down and he didn’t.”

P. A. Kelly testified, in part: “Yes, I recall an occasion in that year, in December, 1933, when Mr. York purchased some tires for his Terra-plane automobile. They were Kelly-Kegister tires, 6600 610. Yes, they were all four tires. The approximate mileage of the Terraplane automobile was 8,000 miles at the time that I put these tires on. I saw the car in October, 1934, ten months after I sold them. We sold the tires in December, 1933, and he had 13,000 miles on the Eegister tires then. He was driving on them at that time. At that time I was working at Eogers Tire Company. Q. Did you have any conversation with Mr. York at that time about the tires? Ans.: Well, this particular time Mr. York came in and filled up with gas and oil and also checked his *698tires and battery. In other words, checked the car, and I called Mr. York’s attention that his tires were getting slick — told him they were getting slick and I would like to sell him U. S. Royals. Q. What was the condition of the tires? Ans.: The fabric wasn’t'showing, but— That was in October, 1934. He had those tires in March, 1935. About every week Mr. York would come and have something done. He would leave the car and get it later, or his son would. Q. Did you have any further conversation with him during that period about the condition of the tires? Ans.: Yes, sir. He bought a battery from me in March, 1935, and I said, 'You still got those tires, but you are almost to the fabric and I don’t believe I would take any more chances.’ He said,. 'I don’t know whether I like your tires, I will probably see you, but I can’t buy the tires now.’ Q. You told Mr. York that you didn’t believe you would take any more chances with the tires? What did he say? Ans.: Well, he said, 'I know you are right, but I am not in a position to buy the tires now.’ (Cross-examination.) Yes, I made an examination of these tires. I checked them to see if the fabric was showing. The fabric wasn’t showing but the tires were slick. I could stand and look at that tread-and tell there was no nonskid on it. I can look at a tire and tell if it is slick, but I cannot tell if it is just down to the strip. Now if it was gone through the fabric I can see it from standing on the side. I could tell they were slick and the nonskid was gone.”

O. Y. York, Jr., testified, in part: “I was familiar with this automobile which was in this wreck, was turned over on 3 June, 1935. Kelly-Sp-ringfield tires were on the ear at the time it was brought back from the wreck. They were put on the car in January, 1934. They were purchased from the Carolina Service Corporation. Mr. Kelly sold them. They were the same tires on it at the time of the wreck. . . .

Q. Do you know how many miles those tires had been from the time they were purchased until the time of the wreck ? Ans.: 24,000 miles.”

O. K. Wishon testified, in part: “I recall that some time in the month of June, 1935, Mr. C. Y. York, Jr., brought in an automobile of his father’s. I examined the automobile. Q. I wish you would state to the court and the jury the condition of the tires ? Ans.: The tires were practically worn out. Q. Will you describe their condition as nearly as you can? Ans.: Well, the tires were worn to the breakers in most of them and the tread worn off and part of them worn down to the breaker strippings.” The defendant introduced no evidence.

The issues submitted to the jury and their answers thereto were as follows :

“1. Was the plaintiff, Mrs. Mabel A. York, injured by the negligence of the defendant, C. Y. York, as alleged in the complaint? Ans.: 'Yes.’

“2. What amount, if any, is the plaintiff entitled to-recover of the defendant ? Ans.: '$12,000.’ ”

*699Tbe court below rendered judgment on tbe verdict. Defendant made numerous exceptions and assignments of error and appealed to tbe Supreme Court. Tbe material ones and necessary facts will be set forth in tbe opinion.

Charles U. Harris and Ehringhaus, Royall, Gosney & Smith for plaintiff.

Murray Allen and Smith, Leach •& Anderson for defendant.

Olakkson, J.

In tbis jurisdiction a wife bas tbe right to bring an action for actionable negligence against her husband. Roberts v. Roberts, 185 N. C., 566 (567); Shirley v. Ayers, 201 N. C., 51 (55); Jernigan v. Jernigan, 207 N. C., 831.

In Harper v. R. R., 211 N. C., 398 (402), citing many authorities, it is said: “It is well settled in tbis jurisdiction that negligence on tbe part of a driver of a car will not ordinarily be imputed to another occupant unless such other occupant is tbe owner of tbe car and bas some Lind of control over tbe driver. They must be engaged in a joint enterprise or joint venture. Automobile driver’s negligence is not, as a general rule, imputable to a passenger or guest.”

The defendant introduced no evidence. At tbe close of plaintiff’s evidence tbe defendant in tbe court below made a motion for judgment as in ease of nonsuit. C. S., 567. Tbe court below overruled tbe motion and in tbis we can see no error. Tbe evidence which makes for plaintiff’s claim, or tends to support her cause of action, is to be taken in its most favorable light for tbe plaintiff, and she is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom.

It is alleged in tbe complaint, and we think tbe evidence sustains tbe allegations: “That defendant negligently and carelessly drove bis automobile at a high and dangerous speed; that be continued to negligently and carelessly drive bis automobile at a high and dangerous speed in the face of and into a fast approaching storm and rain and into a sharp curve in tbe road. That be negligently and carelessly failed to equip bis automobile with tires that were safe to drive, and did negligently drive bis automobile with tires that were unsafe.”

In Waller v. Hipp, 208 N. C., 117 (120), it is said: “There was evidence from which tbe jury could find that tbe skidding of tbe automobile was tbe result of tbe negligence of tbe defendant in driving an automobile with tires which be knew were worn out and slick, on a highway which was wet and slippery, at a rate of speed which, although not ordinarily unlawful under all tbe circumstances shown by tbe evidence. C. S., 2621 (45).” Butner v. Whitlow, 201 N. C., 749; Norfleet v. Hall, 204 N. C., 573; Taylor v. Rierson, 210 N. C., 185 (188-9).

*700Tbe defendant in bis answer denied negligence and set up the defense: “That the accident referred to was unforeseeable and unavoidable, but that if the defendant was in any manner negligent in the premises, which is again denied, then and in that event the plaintiff was also negligent in that she permitted, allowed, and acquiesced in the operation and driving of the said automobile in the manner in which it was driven at the time of said accident, with full knowledge of and opportunity of knowing the condition of said automobile, and that in making the said trip and in driving said automobile the defendant was acting in the joint interests and for the mutual benefit and pleasure of the plaintiff and the defendant; that if the defendant was negligent in the premises, which is specifically denied, then the said negligence of the plaintiff contributed to and was a proximate cause of said accident, which contributory negligence of the plaintiff is hereby pleaded as an additional defense to and in bar of this action.”

There was no sufficient evidence to show that plaintiff knew, or by the exercise of due care had reasonable ground to believe, that the tires were slick and worn out. Plaintiff testified, on cross-examination by defendant, “I don’t know anything about the condition the car was in.” There was no evidence of a joint enterprise or that plaintiff had any control over the car which defendant was driving. Charnock v. Refrigerating Co., 202 N. C., 105 (106). Plaintiff was a passenger or guest in the car. There was no sufficient evidence to submit an issue of contributory negligence to the jury. Mabel York testified, in part: “Mother told daddy to slow down and he didn’t.” We do not think any of these defenses can be sustained under the facts and circumstances of this case.

Mabel York was recalled. An “adjuster,” a Mr. Greene, on 2 July, 1935, shortly after the accident, had gone to her and gotten a statement from her. On cross-examination she testified, in part: “Q. You don’t now recall having said that Mr. York slowed down? Ans.: No, I don’t. Q. You don’t deny that you said it at that time, do you? Ans.: No. Q. Miss York, I wish you would please read to the jury the statement which you admit you signed and which bears the date of 2 July, 1935, relative to the time, place, and manner in which this accident occurred and the conversation between yourself and your mother at the time? Objection by plaintiff; sustained; exception. If permitted to answer the foregoing question the witness would have answered and read the statement as follows: (Statement set forth.) (By plaintiff’s counsel) : We repeat that we have no objection to defendant’s offering the statement in evidence. (By defendant’s counsel) : I repeat, plaintiff’s counsel says he has.no objection to our offering the statement, and I repeat that we have no objection to his offering writing of his witness *701signed by her. (By the court) : The court rules that either side may introduce the statement, and that it is apparent that neither side is going to. (Redirect examination.) I was at home alone when I signed it.” In the statement she says: “It was raining heavily in front of us and that father reduced his speed.” The statement would have shown exactly what was elicited on the prior cross-examination that she did not deny about putting in the statement about her father “slowed down.” This made the written statement immaterial.

In Lockhart’s N. C. Handbook of Evidence (2nd Ed.), part of see. 276, citing authorities, is the following: “That documents containing substantive evidence could not be introduced while cross-examining a witness when an opportunity was given to introduce the document at the proper time, that new substantive evidence could not thus be brought out if opportunity was given to introduce it at another time, and that impeaching evidence brought out on cross-examination must be confined to its impeaching effect and not be .used as substantive evidence.”

The defendant contends that certain remarks on the argument by-plaintiff’s attorney to the jury were improper and prejudicial. The record discloses: “No exception was taken at the trial by defendant, but in its case on appeal defendant excepts.” It is well settled that the exception must be entered at the time. C. S., 643; Borden v. Power Co., 174 N. C., 72 (73); Rawls v. Lupton, 193 N. C., 428 (431). “(By Mr. Royall): I was just referring to Mr. Greene. I think it is perfectly proper — ‘Gentlemen, they did not put on the man that took the statement. Didn’t put him on the stand.’ Defendant objects; objection overruled; defendant excepts.” The argument was perfectly legitimate, at least in the sound discretion of the court below. The “adjuster,” although not a party to the action in obtaining the statements and what it contained, was inquired into by defendant. The charge made as to the method of obtaining the statements and not refuted by him was a “pregnant circumstance.”

In criminal cases the defendant is competent, but not compellable to testify. N. C. Code, 1933 (Michie), sec. 1799. In civil cases the failure of the defendant to take the stand to testify as to facts peculiarly within his knowledge and directly affecting him is “a pregnant circumstance” for the jury’s consideration. Hudson v. Jordan, 108 N. C., 10 (12). As pointed out in Goodman v. Sapp, 102 N. C., 477, the earlier cases declared that “the mere fact that a party, plaintiff or defendant, did not testify in his own behalf was not the proper subject of comment,” but that casé held that this must be left ordinarily to the sound discretion of the trial judge. However since the Hudson case, supra, the principle of that case has been frequently approved. In Powell v. Strickland, 163 N. C., 394 (402), it is pointed out that the *702jury should presume nothing against him from the bare failure of a party in a civil action to testify, but “when he is called upon to explain, the case is different.” In In re Hinton, 180 N. C., at p. 212, Walker, J., declares: “We are at a loss to conceive why propounders did not take the witness stand and refute the personal charges made against them unless they knew them to be true and unanswerable, or felt that they could not overcome the evidence of their truth offered by the caveators, or did not wish to undergo the ordeal of a severe cross-examination, which might disclose to the jury how unfeelingly they had treated the caveators who, because of their helpless and hopeless condition, were entitled to their care and protection instead of being the victim of their cupidity. There can be no wonder that the verdict was against them. Evidence of this kind was competent for the jury to consider, for when one can easily disprove a charge by testimony within his control, and which he can then produce, and fails to do it, it is some proof that he cannot refute the charge.” The rule of the Hudson case, supra, has been repeatedly approved and followed in recent cases decided by this Court. See Walker v. Walker, 201 N. C., 183 (184); Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).

N. C. Code, supra, sec. 2621 (46), in part is as follows: “(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, (b) Where no special hazard exists the following speeds shall be lawful, but any spéed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful: . . . (4) Forty-five miles per hour under’ other conditions.”

The court below charged: “Now, gentlemen of the jury, if the plaintiff shall have satisfied you by the greater weight of the evidence that the defendant was operating his car at a speed in excess of 45 miles an hour upon the occasion in question, the court instructs you that that is evidence from which you may, but are not required to, find that he was violating the law. If you shall not so find, then, gentlemen, that would not constitute negligence in so far as that feature of the case is concerned, but if you should so find, then the court instructs you that would constitute negligence per se.”

Under the facts and circumstances of this case we can see no prejudicial error in the charge. From the evidence, under the conditions then existing and the speed under the hazard existing, over 45 miles an hour is unlawful and therefore negligence per se.

In Albritton v. Hill, 190 N. C., 429 (430), we find: “This and other evidence which we need not set out in detail (C. S., 2616), tended to ' show a breach of more than one statute. A breach of either is negli*703gence per sej the causal relation between the alleged negligence and the injury being, of course, a question for the jury. . . . (Citing authorities.) In reference to concurrent negligence we have held that where two proximate causes contribute to an injury the defendant is liable if his negligent act brought about one of such causes. Mangum v. R. R., 188 N. C., 689; Hinnant v. Power Co., 187 N. C., 288; White v. Realty Co., 182 N. C., 536; Wood v. Public Corporation, 174 N. C., 697; Harton v. Telephone Co., 141 N. C., 455.”

The objections and assignments of error as to the answers of certain physicians who gave their opinion as to plaintiff’s injuries cannot be sustained. Keith v. Gregg, 210 N. C., 802 (808).

There are numerous exceptions and assignments of error made on the trial and to the charge which cannot be sustained. We have examined defendant’s brief and additional authorities, but the law is well settled in this State in matters of this kind. On the whole record we find no prejudicial or reversible error. The charge given covered every aspect of the case and the law applicable to the facts, and complied with C. S., 564. We repeat, as said in Davis v. Long, 189 N. C., 129 (137): “The case is not complicated as to the law or facts. The jurors are presumed to be men of 'good moral character and sufficient intelligence.’ They could easily understand the law as applied to the facts.”

In the judgment of the court below we find

No error.

BakNHILl, J.,


Plaintiff was injured while riding as a passenger on the automobile of the defendant, going from Raleigh to Charlotte, the accident occurring on the westerly side of Albemarle. Plaintiff alleges that the defendant drove his automobile at a high and dangerous speed; that he continued to drive the same at a high and dangerous speed in the face of and into a fast approaching storm and rain, and into a sharp curve in the road, and that his automobile was equipped with tires that were unsafe. She bases her right to recover upon evidence which she contends sustains these allegations.

She testified that the defendant, after leaving Raleigh and until the' accident, drove his car at a rate of speed of 55 or 60 miles an hour; that after leaving Albemarle she observed a rapidly approaching rain or storm; that after the rain came the defendant continued to operate his car at said rate of speed without slowing down for a period of a couple of minutes, and into a sharp curve. At the rate of speed she testified he was going he drove his automobile from one to two miles upon wet pavement and in a rain storm without slowing down. And yet she states that she did not protest or object or call his attention to *704tbe approaching storm. Sbe does say that sbe and her daughter, who was on the rear seat, discussed the storm.

Upon this evidence was it not the duty of the judge to submit an issue to the jury on the defendant’s plea of contributory negligence?

There is a wide variety of rules applicable to the conduct of a guest in an automobile. At one extreme is the requirement that the guest must exercise the same care as the driver. Read v. N. Y. Cent. & H. R. R. Co., 219 N. Y., 660, 114 N. E., 1081. At the other extreme is the rule that the guest must remain silent. Alost v. Wood and Drayage Co., Inc., 10 La. App., 57, 120 So., 791; Telling Belle Vernon Co. v. Krenz, 34 Ohio App., 499, 171 N. E., 357; Schlosstein v. Bernstein, 293 Pa., 245; 142 Atl., 324. Between the two extremes lies the majority view— that a guest is bound to use ordinary care under the circumstances. 9 N. C. Law Review, 99; 11 ibid., 349, 350, and cases cited to this effect in these notes.

The cases in this State indicating the duty of a passenger are quite limited. The doctrine of contributory negligence as applied to guests in automobiles appears to have been lifted from the older law of master and servant, and was first treated in this State as “imputed negligence” in cases in which the guest had some degree of control over the driver of the automobile. Pusey v. R. R., 181 N. C., 137, 142, and cases cited. But since there are relatively few instances in which the guest has any real control over the driver, it was necessary to adopt a broader rule. This was first done in King v. Pope, 202 N. C., 554, in which the opinion quoted from Huddy, Automobile Law, Vol. 5-6, 9th Ed. (1931), at p. 265, approving a statement to the effect that the duty of the guest to remonstrate against excessive speed exists, but as it is not an absolute One, it usually presents a question for the jury. That case also quoted at length from Krause v. Hall, 195 Wis., 565, 217 N. W., at p. 292, which recognizes the duty to protest, but points out that since protests can appeal only to the driver’s sense of courtesy and are likely to arouse his displeasure, whether a person in the exercise of ordinary prudence would have continued to remain in the car or insisted upon leaving the car is usually a matter for the jury. The King case, supra, for the first time, numbered North Carolina among those states following the moderate or middle-ground rule — -that a guest is bound to exercise that degree of care which would be exercised by a person of ordinary prudence under the circumstances. The trial judge in that case laid down this rule, and the Court in the opinion approved it. The same rule applies here as in other negligence cases. In Norfleet v. Hall, 204 N. C., 573, the opinion declared it to be “conceded” that, under certain circum-' stances, a guest has the duty of protesting against excessive .speed, and upon failing to do so is barred from recovery. Thus we find the funda*705mental rule accepted in North Carolina, but it is significant that tbe Court, as yet, applies it with reluctance, as indicated by tbe fact that in both of these cases in which the rule has been laid down the opinions declared that the rule did not apply (in the King case, supra, it was intimated that the duty did not exist where the driver’s negligence is willful and wanton, and in the Norfleet case, supra, it was noted that the guest did not have sufficient time to protest). Accordingly, we have a rule established but as yet without the essential distinctions and refinements of a mature rule of law; naturally the Court has been cautious in applying such a rule.

Our Court has not yet indicated whether a distinction is to be noted between the duty to warn against a generally dangerous condition (i.e., excessive speed, wet pavement) and the duty to point out a perceived danger (i.e., approaching train, sudden cloudburst). Justice Brogden, in his dissent in the Norfleet case, supra, vigorously assaulted the entire philosophy of our contributory negligence rule as being too lenient upon the gratuitous guest and too severe upon the driver, declaring in his usual laconic and colorful fashion that to permit a “thumb-rider” to recover from a driver transporting him as a courtesy was equivalent to saying that “a person can recover damages for being bitten by his own dog.” Norfleet v. Hall, supra, at p. 580. There is tremendous force in his observations. Assuming, however, that the rule to which he objected is now established, there is yet the possibility of determining fine points and hair-line distinctions against the gratuitous guest and in favor of the neighborly driver. The law should not encourage individuals to sue their relatives, their neighbors, and kindly friends when they are overtaken by mere accidents.

“The law is well settled by authorities too numerous to cite that a gratuitous guest cannot recover for his host’s negligent operation of an automobile, if conscious of apparent danger or faced with such conditions and circumstances as would herald danger to a reasonably prudent man, he fails opportunely to protest or acquiesces therein.” Dale v. Jaeger, 44 Idaho, 576, 258 Pac., 1081, 1082. “Where possible danger is reasonably manifest to an invited guest, and she sits by without warning or protest to the driver and permits herself to be driven carelessly to her own injury, she becomes a coadventurer in the risk, and is thereby barred of recovery.” Clise v. Prunty, 108 W. Va., 635, 152 S. E., 201, 203. To the same effect see Cyclopedia of Automobile Law, Huddy, 9th Ed., Vol. 5-6, sec. 140; Cyclopedia of Automobile Law and Practice, Blashfield, Perm. Ed., secs. 2413, 2414; Automobiles, Berry, 7th Ed., 5, 171, 172, and numerous cases cited in these texts.

Usually the law embodies the playing rules of good sportsmanship. If I am correct in interpreting the everyday social and business ethics *706of our times, there was evidence indicating that the plaintiff, berself at fault, here violated the rules of good sportsmanship by charging her husband with negligence when, in my opinion, she likewise violated the mandates of the law. According to her testimony they were both “offside,” but he alone suffers the penalty.

In this case the driver was occupied at the wheel while driving at' a high rate of speed. The guest saw the sudden cloudburst as it approached. The evidence is conflicting as to whether she warned him at •all, and it is even more doubtful that the warning protest, if given, was vigorous and insistent. She was satisfied to trust her husband’s judgment, though she saw impending danger possibly unknown to him. Why should the court be “more solicitous of her welfare than she was” for her own safety? If she was silent she acquiesced in his negligence. If she spoke, it is for the jury to say whether her words amounted to a protest sufficient to free her from the natural liability for passive acceptance of another’s negligence. It is conceded that it is her duty to warn the driver of generally dangerous conditions, if the danger is a sudden one perceived by her and possibly not perceived by the driver, the duty to warn the driver is even stronger, and it becomes even more imperative that there be ample proof of her protest. Here there was a duty upon her to protest, and the evidence that she discharged this duty is weak in two respects: (1) There is conflicting evidence as to whether she entered any protest, and (2) if she did protest, her language is not given and the force with which it was uttered is not described.

This is a case in which a wife is suing her husband. It is not difficult to read between the lines and ascertain that while the parties to this action contemplate that the recovery will remain in the family, they do not anticipate that the judgment will be paid by a member of the family. If, in fact, liability is sought to be placed upon another who is not a party to the suit, that party is entitled to have the case tried in accord with the law and to have every legitimate defense presented to the jury. In my opinion the evidence is such as to require the submission of an issue of contributory negligence. For that reason there should be a new trial.

Stacy, C. I., and WiNBOBNe, J., concur in dissent.