Our petitioners, Mrs. Sargent et ' al., respectively sued in their own right and as next friends of Nancy Sue Sargent and Betty Lou Smith (aged 13 and 14 year's, respectively, at all material times) on account of accidental injuries sustained by these minors while riding as guest's ór non-paying occupants of an automobile of the defendant-respondent, Carl Williams, then in possession of and driven by his 13-year old son, defendant-rfespond-' ent, Jerry Williams, on a social trip of the three children from Tahoka to Lubbock. A verdict established in effect a case of responsible negligence on the part of the defendant-respondent father in permitting young Jerry to drive the car with 'knowledge that the child (a) had no operator’s license and (b) was (in effect) an: in'com*788petent and reckless driver. The verdict also established numerous acts of causal “gross negligence” on the part of .Jerry, including that of driving 110 miles per .hour just before the car left the road at a curve. On these findings, and in disregard of certain finding^ in the realm of misconduct of both the minor and adult plaintiff-petitioners, the trial court rendered judgment in favor of the latter against both respondents. On appeal by the respondents, the Amarillo Court of Civil Appeals reversed this judgment and rendered judgment that the petitioners take nothing on the ground that, as a matter of law on the evidence and the above-mentioned findings which the trial court disregarded, petitioners were barred from recovery by their own misconduct. 255 S.W.2d 229.
We granted the petition for writ of error on the one point that:
“The Court of Civil Appeals erred in holding, as a matter of law,' that the minor plaintiffs were guilty of ' contributory negligence in riding with the defendant, Jerry Williams, who did ’nót possess a'driver’s license and that such negligence proximately ' caused their injuries as a matter of law.”
Our- object- in so - doing was' to- review the holding against the minor petitioners, including all particulars of their misconduct on which it rested. In .this connection, their prior knowledge of Jerry’s age and unlicensed status was established by their own admissions, as well as by the verdict, but the jury also found that neither of tfrem was negligent in riding with Jerry in ¡the light of this particular item of knowledge (the corresponding issues on proximate cause being left unanswered). It was also separately found that Jerry “was a small, weak, reckless boy, wholly unfit and incapacitated to operate said automobile on the highways of the State of Texas” (which we take to mean that he was both an incompetent and reckless driver); that this fact was, prior to the accident, known to both minor petitioners or could have been known to them by the exercise of ordinary care, but that neither of them, was negligent in riding with Jerry in the light of this actual or presumed knowledge -(the corresponding issues on proximate cause being thus left unanswered). It was also found, in response to sets of issues evidently tendered by the defendant-respondents in order to establish still another ground of contributory negligence, that the girls did not fail to protest the speed at which Jerry was driving shortly before the accident.
As suggested by their above quoted point of error, the written argument of the petitioners in respect of the rights of the minor petitioners is largely directed at the matter of negligence arising from their knowledge that Jerry was unlicensed. While the opinion of the court below rather follows the same course, its conclusion that, as a matter of- law, contributory negligence was established, rests alternatively on the important finding, which does not appear to be attacked by petitioners on the appeal, with respect .to the matter of knowledge of the girls that Jerry was an incompetent and reckless driver- wholly aside from his failure to have a license. The pros and cons of this alternative position were amply developed on the oral argument, and since we conclude it to be well taken, we need not decide whether the knowledge of the one fact of Jerry’s unlicensed status was 'in and of itself enough to bar recovery as á matter of law under the circumstances.
We agree" with the -Court of Civil Appeals‘that' the Case is governed by our recent holdings in Schiller v. Rice, Tex.Sup., 246 S.W.2d 607, to the effect that (a) ordinary contributory negligence is .a defense to actions under our automobile guest statute, and (b) both the “negligence” apd.“‘contributory!’ elements of contributory negligence follow as a matter of law from the fact of-the guest embarking on (or-refraining, upon,due opportunity, to disembark from) a • trip with a driver knowing the latter .to'b'e drunk. That this “self-exposure to risk” type of. contributory negligence may also. exist where the guest knowingly entrusts his fate to an incompetent or- reckless driver is recognized. Walsh v. Dallas Railway, & Terminal Co., 140 Tex. 385, 167 S.W.2d 1018, 1021; Re*789statement, Torts, Sec. 466, Clause. (a), Comment e; Blashfield, Cyc. of Auto. Law and Practice, Sec. 2512 (Perm. Ed.). Once established these basic facts of incompetence and recklessness of., the ■driver and the voluntary act of the guest with knowledge thereof, we see no reason why negligence and proximate cause should not follow as a matter of law the same as in a situation where the driver is intoxicated. There is no substantial difference between the risk of a driver who is drunk and that of one who is both incompetent and reckless in his natural state. The risk in the former case is that a driver, otherwise not incompetent ■ or reckless, may yet be one or the other or both while his intoxication lasts. In the latter it is the certainly no less realistic presumption that one, who is normally both incompetent and reckless, will continue to be normal in one or the other or both of these respects. As hereafter further stated, and indeed as exemplified by this case, there is probably no great practical difference in the matter of relative amenability to protest between drunk drivers and those who are habitually reckless. The application of Schiller v. Rice here accordingly is that the conduct of the minor .petitioners in undertaking the trip with Jerry, knowing him to be both an incompetent and reckless driver, was negligent, notwith-. standing the findings to the contrary, and contributory to the accident notwithstanding the absence of findings on the issues of proximate cause.
It is proper here to observe, although the point cannot be said, to be urged by the petitioners, that the failure of the verdict to find actual knowledge, on the part of the minor petitioners in finding them to have either that or constructive knowledge of Jerry’s disqualifications, is not important.^ The use of the word “knew” in Schiller v. Rice must be taken in its context, which included a jury finding that the plaintiffs “knew and realized” the defendant driver to be intoxicated. The American Law Institute does, indeed, recognize actual knowledge of (intentional exposure to) unreasonable risk as a separate category of contributory negligence but evidently requires it in order to bar recovery only in certain special cases not material here. Restatement, Torts, Secs. 466 (including Comment h) 467 (Comment c). See also Galveston, H. & S. A. Ry. Co. v. Stevens, Tex.Civ.App., 94 S.W. 395, 396, 397, wr. of er. denied.
The reference in the Schiller opinion to the opportunity of the plaintiff guests to leave the automobile is likewise to be taken in the context of that case in which the parties in question were in and out of the car on various occasions prior to the final' ride during which the accident occurred, the defendant driver evidently progressing in his intoxication with each stop. To say that one who consents to ride with an obviously drunken driver becomes contributorily negligent only after experiencing that he actually does drive as he should have been expected to and then insisting on remaining in the car, would be to repudiate the theory of the Schiller decision. The findings that the girls did not fail to protest the speed at which Jerry was driving shortly before the accident, while they obviously eliminate, .the alleged failure to protest as a separate item or act of contributory negligence, do not affect the question of whether it was negligence as a. matter of law to undertake the trip, with Jerry in the first place. . Cases cited for the petitioners, such as Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564, wr. of er. dism,, which state the test as being whether there is evidence. of any care at all on the part of the. plaintiff, might .be applicable only if at the outset the girls had, for example, gotten Jerry to promise to mend his ways, wjiich they did not do. And, even so, it is hard to see hpw a promise or admonition could be expected forthwith to make a competent driver out of one^ theretofore incompetent as well as reckless. As to whether, on the. point of proximate cause, the girls should be held as a matter of law to foresee that Jerry would persist in speeding even over their protests, it is enough to say that excessive speed was not the only act of causal negligence of which Jerry was convicted. And even if speed were his only act of misconduct, we think a driver, who *790has the habit of consciously subordinating the safety of others to his own caprice, can no more be expected to heed the protest of one not in authority over him than to condüct himself prudently in other respects. As this court has heretofore .stated, one of the primary marks of recklessness is persistence in the misconduct in question. See Rogers v. Blake, Tex.Sup., 240 S.W.2d 1001, 1004.
The perhaps most heavily emphasized point of difference between Schiller v. Rice and the instant case, is that in the former the injured plaintiffs, were adults' rather than “teen-age” children. The contention thus is that the single fact of the youthful ages of the minor petitioners prevents their being held negligent as a matter of law, which seems, in turn, tantamount to saying that a girl of even 14 years' of age can never be held negligent as a matter of law. Certainly much younger children may be held negligent as a matter of fact, as is plain from decisions such as Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456, cited for the petitioners; and where, as here, the finding as to the knowledge of the minors has not been attacked by them, and there is no dispute about them voluntarily and unreservedly undertaking the' trip' with Jerry as the'driver, and nothing to suggest that they were less than normally alert and intelligent school girls, accustomed to having unchaperoned social engagements with boys, one may indeed doubt" the proposition that, simply because of their ages, only a jury, or judge acting as jury, could ever decide the question of their negligence. Obviously the Dallas Ry. & Terminal Co. decision, supra, does' riot so. hold, nor does any other décision to which we are cited. In Heimann v. Kinnare, 190 Ill. 156, 60 N.E. 215, 52 L.R.A. 652, while the case was one of the attractive nuisance type, it was held in so many words that a boy between 13' and 14 years of age, was as a matter of law, guilty of contiibu-tory negligence in running out onto the frozen surface of a pool knowing that 'the ice was of doubtful 'strength. In similar types of cases in this state it has been heid, as a matter of law, that a boy of 14 years; one month and eight days of áge appreciated the risk of swimming in a deep pool, Massie v. Copeland, Tex.Sup., 233 S.W.2d 449, and that even a child of six understood the danger of falling from the top of an oil tank. Stimpson v. Bartex Pipe Line Co., 120 Tex. 232, 36 S.W.2d 473. However, we agree with the view of the respondents that the point in any event comes too late for us to decide it.
It is in effect a contention that in its decisión the Court of Civil Appeals applied the wrong (adult) standard of care. As evidenced by the opinion in the Dallas Ry. & Terminal Co. case, the question of which standard tó apply to the conduct of a particular party is a question of law.. For example, in a jury case, the court does, not. ask, but tells, the jury whether the ordinary or special standard shall be used. Of course, the processes are different in determining negligence as‘a matter of law and' as a question' of 'fact, büt the same legal' standard of conduct governs both processes, when the conduct of the same individual' party is involved. In the instant suit— perhaps because alleged “.teen-age” misconduct was involved on both sides — the-proceedings up to the motion for rehearing in the Court of Civil Appeals were all conducted, as if by commori consent, on the-basis' that the.,normal standard applied. (Orie formal counter point of petitioners, in their brief as appellees below does contain a four-word reference to the ages of' the minor petitioners, but the brief itself' does not discuss the matter at all). In the trial court, not only the definitions and instructions in the charge and the final issues on’negligence and contributory'negligence, but also the' underlying' issues as to whether the mirior petitioners “knew, or-could liave known by the exercise of ordinary reasonable care” of Jerry’s driving' disqualifications, were all in terms of thé usual or adult standard, there having been, no pleadings, requested instructions, exceptions to pleadings or charges', or anything ’ else to suggest a different course. In that situation, when the trial judge might be required, on motion for judgment non obstante, to déterm’ine whether contributory negligerice existed as a matter off *791law, if he should apply the standard for which petitioners now contend, he would be himself applying a different standard than the one he actually had given to the jury as the law of the case with the implied consent of all parties. To illustrate further, the jury here having found that the minor petitioners knew, or by the exercise of reasonable care by adult standards could have known, of Jerry’s driving disqualifications,, it has determined by adult standards one essential issue of several which together constitute a single defense, and if the trial judge, in ruling on whether undertaking the trip, with the knowledge or constructive knowledge so determined, was negligence as a matter of law, should use a non-adult standard, we would' have the same defense against the same persons determined by two conflicting legal standards. Such a result is altogether illogical, and since the trial judge cannot thus depart from the law of the case, as he has properly (by implied consent of the parties) given it to the jury, neither can an appellate court. In Rittgers v. U. S., 8 Cir., 1946, 154 F.2d 768, 769, the government, as defendant-appellee in a suit .by a soldier’s widow for National Service Life Insurance benefits, was denied the right to do substantially what .the petitioners seek to’do here. The defense was that the widow had remarried .(by common-law.' marriage). The sole jury -issue submitted was whether she did or not “enter into a valid common law marriage” at a stated time and place; but the court in its general instructions, to which no exception was taken, tqld the jury that cohabitation was an essential element of such a marriage. After the verdict against the widow,, the latter .by motion for judgment non obstante and an appeal contended that the evidence as a matter of law established that, she had not remarried. The government then sought to Uphold its verdict of remarriage on the ground that proof of cohabitation (which it had failed to make) was unnecessary to establishing a common-law marriage; . but this contention was rej ected on the primary ground that the contrary unopposed instructions of the trial court became the fixed law of the case. 154 F.2d 768, 772. In other, words the government was not allowed to say as the petitioners say here, “we voluntarily undertook an unnecessarily heavy burden before the jury, but it found in our favor, so we are now free to discard that burden on appeal.” This is no doubt but another application of the familiar rule against taking inconsistent positions as between the trial and appellate courts. See Boatner v. Providence-Washington Ins. Co., Tex.Com.App., 241 S.W. 136, 140.
From what we have held above it follows that the holding of .the court below correctly barred recovery of the adult petitioners in their own right for the injuries to the minor petitioners. In this connection the question of standard of care is, of course, not, involved, and moreover the jury found the adult petitioners to be negligent in permitting their respective daughters to ride with Jerry when, as was also found, they knew or by the exercise of ordinary care could have known, that Jerry was an incompetent and reckless driver. The effect of our holding here thus is to establish -proximate cause as a matter of law notwithstanding the contrary findings in response to the proximate cause issues.
We find little in the recprd to indicate abuse of discretion on the part of the court below in determining that the case was not so undeveloped on -the trial as to require a remand rather than a rendition in the interest of justice.
The judgment of the Court of Civil Appeals is affirmed.
GRIFFIN, SMITH and CULVER, JJ., dissenting.