I am unable to agree that the evidence in this case proves that the appellant driver was negligent. True, the accident occurred on appellant's left side of the road, but his position there was explained in the following evidence given by him when called as a witness by plaintiff:
"Q. Tell the Court what happened between Moxee City and Yakima that evening. A. Well, we left — we made this right angle turn approaching the intersection of the railroad, coming down there, I applied my brakes, couldn't get any response, I pulled on the wheel just as hard as my wheels would cut, and I made three utters, like `Oh! oh! oh!' I could see that the accident could not be avoided. Q. Where was your car then, when you saw that, Mr. Haab? A. I would say approximately 80 foot from the place of collision. Q. And what part of the road were you on, relative to your right or left? A. On the right side of the road. Q. Go ahead. A. And the railroad comes across there and, of course, the road makes a slight curve there so as to make a direct right angle across the railroad track, which places the right-hand side of the road on this side of the track in direct parallel line with the road, with the left-hand side coming down this way. So, when I applied my brakes and cut the wheel, I naturally became frightened and I shouted that way `Oh! oh! oh!,' just a little before the accident occurred. Of course, we met. . . . Q. How fast were you traveling at the time you put on your brakes? A. Approximately 25 miles an hour."
This evidence demonstrates that appellant was driving at a moderate rate of speed at the time he approached the turn of the road. He, as any prudent person would, applied his brakes in order to make the turn without injury to himself *Page 489 or to others. The skid was unexpected and not the result of intention or recklessness.
In Wilson v. Congdon, 179 Wn. 400, 37 P.2d 892, this court considered a case where the facts showed that a car skidded onto the wrong side of the road while being driven at a rate of thirty to thirty-two miles per hour on the right side of the wet "black top" pavement. In passing this court stated:
"There is no evidence that appellant's automobile was at any time operated on the wrong side of the highway. That vehicle skidded from its own right-hand side of the highway to the extreme left-hand side of the highway, where it was struck by respondent's automobile.
"The failure of the driver of a motor vehicle to keep to the right side of the highway is excused where, without fault on his part, the machine skids across the center line of the road, but where skidding results from negligence, the driver is liable."
The decision in the case just cited is determinative of the one at bar. I agree with the cited case and disagree with the holding of the majority in this case. Skidding is not of itself indicative of reckless driving. In order to hold a driver guilty of negligence it must be shown that he was negligent just prior to and at the time his car skidded. The facts are not disputed, and we have the same opportunity to ascertain the liability of the appellant as did the trial court.
The burden of proof of negligence and of approximate cause never shifts, but remains with the one alleging it. The rule is properly stated as follows:
"Furthermore, the burden of proving negligence by a preponderance of the evidence rests upon the party alleging it, and the party charged is not required to assume the burden of proving that he was not negligent, but is only required, in response to a prima facie case of negligence made against him, to come forward with evidence excusatory of his negligence. The extent to which he must go in that respect is only to the point of producing evidence sufficient to balance the scales upon that issue. Beyond that point, he is not required to go. The original burden of proving negligence by a preponderance of the evidence remains *Page 490 throughout the case upon the party charging negligence."American Products Co. v. Villwock, 7 Wn.2d 246,109 P.2d 570, 132 A.L.R. 1010.
I contend that in any event appellant is not liable to respondent because respondent was a guest riding as such in appellant's car. Rem. Rev. Stat., Vol. 7A, § 6360-121, provides:
"No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator: . . ."
The question presented is: Who is an "invited guest or licensee, without payment for such transportation," within the meaning of the statute?
The so-called contract or agreement made between the workers is shown by the following undisputed testimony:
"Q. Now, what discussion did you have, say, with Mr. Coerver, relative to driving back and forth in your different cars? A. No particular discussion, other than — the same formality that we all had was that we would share our cars and one would drive one day and one would drive the next, and so on. Q. And that made it about every fourth or fifth day you would use your car, and the other days they would use their cars? A. We would try to keep it in sequence, yes. . . . Q. The day that you drove the car, you paid all the — for the gasoline and oil, the day you used your own car? A. Yes, sir. Q. And that was true of the others when they — A. (Interposing) Yes, sir. . . . Q. Mr. Haab, now, back to your agreement or understanding, was there any obligation on each of you to go? Could you go in another car, and did you, at different times, go in another car, take a bus, or use your own car, when they weren't with you? In other words, did they have to ride with you or you ride with them? A. Oh, no, sir. At times, if we deemed it inconvenient, that we had to work overtime, or probably some — I told the crowd not to come for me, I was going to drive my own car that next day, or vice versa with the others. Q. No obligation whatever, if it wasn't convenient to go they didn't need to go, *Page 491 no obligation for them to go, if they didn't want to? A. No, sir. Q. And that happened frequently? A. Not quite frequently, no, but it did happen. . . . Q. Now, back to this agreement again, just one thing. As I understand it, you tried to rotate this; each fourth day you'd drive; is that right? A. That's right. Q. But if one of them wasn't going out, you passed him up, or if he had to stay late out there for some reason? A. That's right. Q. He got other transportation. But just how frequent was that, that one of you had to get other transportation? A. Oh, it was very rare. . .. Q. Sometimes the car of one of them would be out of order for two or three days, during that time they'd ride in one of the other cars? A. That's right, in that case, someone would ride (drive) for him and then, when his car got in shape, why, he would take up the ride set down for him. Q. Make up the off time? A. That's right. . . . Q. Now, you say that it wasn't compulsory, no obligation for you to furnish your car, or ride with the others? A. None whatsoever. Q. It was entirely up to you, voluntary? A. Voluntary, that is correct. . . . Q. My point is this. There was no penalty, payment of any, if it wasn't convenient for you to ride with any of the other boys, you could take your own car, you could take a bus, or get other means of conveyance? A. That is correct. Q. There was no obligation on your part to go if you didn't want to go? A. None whatsoever. Q. That is the same with the rest of the boys? A. That is correct."
In order to relieve the passengers from the provisions of the "guest" statute there must exist a binding, enforcible contract between the parties, by the terms of which the driver of the car can be compelled to transport the passengers. Hale v. Hale,219 N.C. 191, 13 S.E.2d 221.
A study of the facts presented in this case show clearly that no "binding, enforcible" contract was entered into by the parties to this action. Each of the parties could go with another if he so desired. He could use his own car. He could ride upon the bus, or not go at all. And in so doing he would not be responsible to any of those who entered into the so-called agreement. Under the arrangement the passengers in the cars of the workers were there at the voluntary invitation of the drivers and were mere guests. All that the agreement provided for was a mere exchange of courtesies. *Page 492
The following statement in Bushouse v. Brom, 297 Mich. 616,298 N.W. 303, is in line with my thought:
"There never was a definite meeting of minds between these parties which resulted either in an implied or express legal obligation on the part of plaintiff to pay defendant. Had there been such an agreement and thereafter defendant had neglected or refused to take plaintiff on the trip, it would follow plaintiff would have had an action at law for breach of the contract; but under the facts of the instant case it would surely be farfetched to conclude that plaintiff would have had such a cause of action if defendant had failed to take plaintiff on the trip."
Directly in point and decisive of the issues presented in the case at bar is the following decision of the supreme court of the state of Michigan, reported in Everett v. Burg, 301 Mich. 734,4 N.W.2d 63:
"Six fellow employees arranged for daily transportation from Saline, Michigan, to their place of employment at Milan. Five of them, including plaintiff's decedent, Richard Ward, owned cars. They agreed that they would alternate each week in the use of their cars so that each of them would furnish transportation to the others in his turn. One of the parties not having a car agreed to pay the driver, whoever he might be, the sum of 75 cents a week for transportation. On September 17, 1940, Richard Ward, one of the parties, met his death, the car being driven by defendant George E. Burg, who agreed to furnish transportation for the group that week. The special administratrix of the estate brought suit against Burg for alleged negligence. At the opening of the trial, plaintiff's attorney stated the arrangements as to transportation. There was no gross negligence claimed.
"The sole question is whether decedent was a passenger for hire or a guest passenger, or whether he and his driver were engaged in a joint venture. It is conceded that if the relationship was not one of passenger for hire, plaintiff cannot recover. Defendant moved for a directed verdict on the ground that plaintiff's opening statement did not state a cause of action. The court entered a judgment for defendant.
"While there is some claim that the relationship was one of joint venture instead of that of host and guest, it was in no event that of passenger for hire. It was simply the exchange *Page 493 of amenities between fellow employees. Plaintiff heavily relies on Peccolo v. City of Los Angeles, 8 Cal.2d 532 (66 Pac. [2d] 651). While there is a superficial resemblance, an examination of that case shows that the parties were not fellow employees at all and the cars belonged to the employers, not the employees. We think this case, on its facts, more nearly resembles that of Fisher v. Johnson, 238 Ill. App. 25, wherein the court said:
"`We regard the circumstances in no different light than if on each occasion when one drove the other in his car to and from their place of business it was upon an express invitation from the former to the latter to be his guest, and therefore negligence could not be imputed to the latter on the theory that because they were accustomed to exchange courtesies and ride together they were engaged in a joint enterprise or undertaking.'
"Practically every interchange of amenities and hospitality, when very carefully analyzed, may appear to be a quid pro quo arrangement, but this does not prevent the relationship from being that of host and guest.
"The trial court was correct. Judgment for defendant affirmed, with costs."
Accord: Miller v. Fairley, 47 N.E.2d (Ohio App.) 243.
An interesting article on the "guest" statute has been written by Professor John W. Richards of the Washington Law School in 15 Wn. L. Rev. 87.
The judgment should be reversed.