On Motion for Rehearing.
Appellee has filed a very earnest motion for a rehearing, insisting that we were in error in holding that the trial court should have given the special requested issue of appellant with reference to the contributory negligence of appellee. He insists that we have held as a matter of law that a guest in an automobile is required to attempt to seize control from the driver and undertake in this way to avoid a collision, and that his failure to do so would constitute negligence.
Appellee cites many authorities to the effect that the general rule is that a guest in a car is not required to attempt to seize control of the car from the driver. Some of these authorities are: Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A. L. R. 289; 18 A. L. R. 314; Horton v. House (Tex. Com. App.) 29 S.W.(2d) 984; Yturria v. Everton (Tex. Civ. App.) 4 S.W.(2d) 211; City of Uvalde v. Stovall (Tex. Civ. App.) 279 S. W. 889; Lyon v. Phillips (Tex. Civ. App.) 196 S. W. 995; 5 Texas Jur. 789, § 171; Eastern Texas Electric Co. v. Smith (Tex. Civ. App.) 298 S. W. 314, 315.
The general rule is well stated in 5 Tex. Jur. 789, 790, § 171, from which we quote in part: “Furthermore, the plaintiff makes a case for recovery by proof (1) that, the defendant operated his vehicle in a maimer forbidden by law, and (2) that the plaintiff himself had nothing to do with the mode of operation of the vehicle in which he was riding.”
We agree with this general statement, but the facts in this case show that Moneada did have something to do with the operation of the vehicle in which he was riding, and that fact takes this case out of the application of the general rule.
It is plain that, where a guest in a car has no control over the operation of the car and does not in any way participate in the operation of the same, and the driver has the absolute and sole control over the operating and driving of the car, the guest is not required to and does not owe the duty to attempt to seize control of the car, or even to assist in its operation. But where, as in this case, the guest is engaging in the joint operation of the car, then it becomes a question of fact for' the jury to pass upon as to whether or not the guest was guilty of negligence in failing to use the means at his command to stop the ear.
Appellee for the first time in .this motion attacks appellant’s assignments with reference to this specially requested charge because it is not affirmatively shown that appellant excepted to the action of the trial court in refusing to give such special issue. The trial judge marked on this issue “refused” and signed same officially. It would have been more complete, probably, if the trial judge had added after the word “refused” the words “exception allowed.” However, we feel that the matter as presented meets all of the requirements and is in conformity with the provisions of article 2188,-Rev. St. 1925, and that same properly presents the error complained of on which the assignment is based.
Furthermore, this complaint, not having been raised by appellee in his reply brief, was in effect waived, and comes too late when raised for the first time upon a motion for rehearing.
Appellee’s motion for rehearing will be overruled.