I concur in the order. The main contention of appellant in this case is that the allegations of the complaint show concurrent negligence on the part of respondent and the driver of the other automobile which caused the accident and resultant injuries to appellant. The question for determination then is, Do the allegations of the complaint show negligence on the part of respondent?
1. The failure to blow the horn is not much insisted upon, nor can it be. The accident occurred in the afternoon, and the other driver was drunk, and driving on the left side of the highway at a furious rate of speed. Respondent's automobile was in plain view. Under these circumstances it is highly probable that the sounding of the horn would not have averted the collision. It *Page 126 would have given the drunken driver of the on-coming automobile no knowledge that he did not already have of the position of the respondent's automobile. It cannot be inferred, therefore, that the failure to sound the horn contributed to the accident.
2-4. The point insisted upon as showing negligence on the part of respondent is his refusal to heed appellant's request and demand that he turn his automobile around and return to the city of Reno. This request and demand were made, it is alleged, because appellant had heard that there was danger on Sunday of meeting automobiles driven by drunken drivers on the highway between Verdi and Truckee. Out of deference for the fears of his guest it would have been a considerate act for respondent to have acceded to her wishes, but can it be said that his refusal amounted to a breach of any legal duty resting upon him? He was traveling on a highway constructed for the business and pleasure of the public. His presence on the highway was therefore by sanction of the state, and he had the right to presume that it was free from dangers not of an exceptional nature. He was charged with the exercise of that reasonable care which a reasonable and prudent person would be expected to exercise under the same or similar circumstances. If the respondent had kept on going up the highway in the face of apparent danger and against the protest of his guest, his action would have been legally censurable. But the mere expression of fear by a guest in an automobile of danger not apparent and based on rumor is, in my opinion, not sufficient to charge the driver with the duty of quitting a public highway on demand of the guest. Under such circumstances, one refusing to discontinue a pleasure trip would be delinquent in manifesting a lack of consideration for the feelings of his guest, but the essential element of legal liability, namely, lack of reasonable care, would be absent. When the danger became apparent, respondent acted as a person of ordinary prudence would have acted under the same or similar circumstances. *Page 127