(dissenting).
I cannot agree with the majority opinion that the plaintiffs are guilty of contributory negligence ás a matter of law, and that the judgment of the Court of Civil Appeals reversing and rendering plaintiffs’ judgment in the trial court should be affirmed. I believe it was a fact question for the jury to determine whether or not the plaintiffs were guilty of contributory negligence. This court,- as late as 1950, in *792the case of Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357, 360, stated what I conceive to be the law applicable to this case:
“* * * The law on this subject applicable to the present case, particularly the question of contributory negligence, is so aptly stated in Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585, 587, that the following excerpt from the opinion is incorporated herein:
“ ‘It is elementary that the question of contributory negligence is generally, by reason of. the very nature of the defense, one of fact for the jury to decide. Gulf, Colorado & S. F. Ry. Co. v. Gasscamp, 69 Tex. 545, 7 S.W. 227; Temple Electric Light Company v. Halliburton, 104 Tex. 493, 140 S.W. 426; Id., Tex.Civ.App., 136 S.W. 584; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442. According to the authorities above cited and many others (69 Tex. 545, 7 S.W. 228), “In order that an act shall be deemed negligent per se, * * * it must appear so opposed to the dictates of common prudence that wé can say, without hesitation or doubt, that no careful person would have 'committed it.” (Emphasis added.) Gulf, Colorado & S. F. Ry. Co. v. Gasscámp, supra. Stating the rule in another way, the court can withdraw the question of contributory negligence of the plaintiff from the jury and determine it as a question of law only when from the ⅛ facts in evidence but one rational inference can be drawn. 38 American Jurisprudence, p. 1054, Sec. 348. It has been said that contributory negligence is a question of fact for the jury when the evidence shows that the plaintiff, with knowledge or chargeable with knowledge of the danger, exercised some care. Henwood v. Gilliam, Tex.Civ.App., 207 S.W.2d 904, application for writ of error refused.’”
The following cases are to the Same effect: Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 37 S.W. 319; North-cutt v. Magnolia Pet. Co., Tex.Civ.App., 90 S.W.2d 632(5, 6), writ refused; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625(6, 8); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (7, 8); Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481(2, 5).
The case of Texas & N. O. R. Co. v. Blake, Tex.Civ.App., 175 S.W.2d 683, 686, writ refused, states the rule to be “ * * * That where the undisputed evidence shows the existence of a danger and the injured party was chargeable with knowledge of the danger, and exercised no care, whatever, then there is shown a case.of contributory negligence as. a matter of law.. But where there is evidence showing some care and. the question is one of the sufficiency-of the care, a jury issue is presented. * * * In testing the sufficiency of care taken by the injured party, all testimony on the point and all -reasonable inferences therefrom will be regarded as true. Napier v. Mooneyham, Tex.Civ. App., 94 S.W.2d 564, writ dismissed.”
Restatement of the Law, Section 466, p-1230, “Comment on Clause (a)”, subhead “c” has this" to say regarding a plaintiff voluntarily exposing himself to'risk:' “In-, order that the plaintiff’s- conduct-may be-contributory -negligence -of the'-sort- described in- Clause (a), the plaintiff must know -of the physical condition created by the defendant’s negligence and' must have-knowledge of such-facts that, as a-reasonable -man, he should realize the danger involved. ■ Furthermore,' the plaintiff - must intentionally expose'himself to-this danger. He ■•must have the purpose to place himself within reach of it. It is not enough that his failure' to exercise reasonable attention to his surroundings prevents him' from observing the danger, or that lack of reasonable preparation or competence' prevents him from ¿voiding it when the'condition created by the defendant is k'ndwn to him. Last of all, his intentional - exposure of himself to the known danger• must be unreasonable. In order that it may be unreasonable it is necessary that a reasonable' man in‘his position would not expose himself to it.” (Emphasis added.)
*793The majority opinion holds that the mere fact that the girls knew, or should have known, that the boy was a “small, weak, incompetent, etc., and unfit driver” and went in his car convicts them of contributory negligence as a matter of law. In 5 Am.Jur., p. 770, “Automobiles”, Sec. 477, it is stated: “There can be no contributory negligence or assumption of risk arising on the part of an invited guest from the mere knowledge that the driver on former occasions has so driven his automobile as to indicate that he is likely to drive recklessly, although this may be a circumstance imposing upon the guest the exercise of reasonable care. To ride with a person zvhom one knows to be negligent does not of itself constitute contributory negligence. Accordingly, a guest who hesitates. about accepting an invitation to ride by reason of having considered the driver careless on previous occasions has been held not negligent in finally consenting to go along, particularly zvhere he asks the defendant to slow up after the latter has been speeding. Where the facts are in dispute as to the driver’s incompetence and the guest’s knowledge thereof, the question of the guest’s contributory negligence is for the jury.” (Emphasis added).
Again, 38 Am.Jur., pp. 847-848, “Negligence”, Sec. 173, discussing assumption of risk by riding with an incompetent driver says: “Knowledge and appreciation of the danger is an essential of the defense of assumption of risk. The doctrine does not apply unless the particular condition of peril has continued long enoiugh so that the person alleged to have assumed the risk can be found to have known or to have been charged with knozvledge of the danger. * * * The doctrine of assumption of risk in an action between persons hot master and servant, or not having relations by contract with each other, is confined to cases where the plaintiff not only knew and appreciated the danger, but voluntarily put himself in the way of it. There is no assumption of risk on the part of an invited guest in an automobile from the mere knowledge that the driver on former occasions has so driven his OMto-mobile as to indicate that he is. likely to drive recklessly.” (Emphasis added.)
65 C.J.S., Negligence, § 174, p. 848 et seq., in discussing this doctrine of volenti non fit injuria, upon which the majority opinion is based, says: “ * * * Assumption of risk arises where the proximate cause of an injury is referable to the conduct of the injured person .after knowledge of the risk of injury, and not to the conduct of defendant who in the first instance created the risk; but it is predicated on the factual situation of defendant’s acts alone creating the danger and causing the accident, with plaintiff’s act being that of exposing himself to such obvious danger with. appreciation thereof, which resulted in the injury. The test of whether plaintiff assumed the risk of a danger from which injury resulted is whether an ordinary prudent person would under the same or similar circumstances have incurred the risk which plaintiff’s conduct involved. * *
“Also, in order to invoke the doctrine of assumed dr incurred risk, it is essential that the risk or danger shall have been known to, and appreciated by, plaintiff or that it shall have been so obvious that he must be taken to have known and comprehended it. Accordingly, while an-individual assumes all the ordinary risks of his voluntary acts or the environment in which he voluntarily places himself, he does not assume obscure and unknown risks, which are not naturally incident thereto and which, in the existing conditions, would not be reasonably observed and appreciated; and one is not required to anticipate that he will be exposed to a hazard not naturally incidental to his situation, but arising from negligence which he has no reason to foresee. The 'doctrine does not apply to bar recovery where the injury resulted from a -hazard of which he had knowledge, plus other factors of danger of which he was ignorant. 'However, it has been held’ that1 the rule may -be applied to an appreciated danger even though plaintiff did not appreciate the full extent of the danger.”
Under the law, as I’ fconceive it, there is evidence of the exercise of reasonable *794care on 'the part of the plaintiffs, and whether or not they were guilty of contributory negligence was a jury question. The facts are of such character that reasonable minds can differ as to whether or not the plaintiffs were guilty of contributory negligence. “Under the circumstances, the evidence must be viewed most favorably to his [plaintiff’s] version of the occurrence. And unless the evidence was [is] of such a character that there was no room for reasonable minds to differ as to the conclusions to be drawn from it, the court would not have been warranted in peremptorily directing a verdict. Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616; Reed v. Markland, Tex. Civ. App., 173 S.W.2d 346, error refused.” Citing Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367, (2, 3). See also Blanks v. Southland Hotel Co., supra; Texas & P. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1, 2); Gifford v. Fort Worth & D. C. Ry. Co., Tex. Sup., 249 S.W.2d 190 (1, 2); City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714, 715 (6, 8), no writ history; Texas & N. O. R. Co. v. Blake, supra.
The evidence in this case, viewed most favorably in support of the jury’s finding that it was not negligence for the girls to ride in the car with Jerry Williams, shows that the girls had ridden with him before and that no injury or reckless driving had occurred; that Betty Lou thought Jerry was a “good driver”, that all of these young people were friends and schoolmates and well acquainted with each other; that when the trip was originally planned it was. the understanding of all the participants that an older brother of Jerry’s was to drive, but that shortly before time to leave, it was ascertained he could not go on the trip and therefore Jerry would drive; that the girls protested to Jerry about his fast driving as soon as he started to drive fast and continued to protest until time of the accident; they warned him of the 30-mile speed zone and tried to get him to slow down. Taking into consideration all of the facts and circumstances testified to in this cause, I cannot bring myself to say that there was no issue for the jury to decide in this case.
I do not agree that Schiller v. Rice controls this case. The facts of each case must be considered in determining whether or not contributory negligence is established. Schiller v. Rice involved an admitted drunken driver. This Court said, after discussing the fact that the Legislature had declared it to be a penal offense for a person, while intoxicated, to drive an automobile upon the public streets and highways, that “by the very nature of that enactment the legislature has declared what every person of ordinary prudence and understanding knows: that it is dangerous for an intoxicated driver to operate a motor vehicle upon the streets [etc.] * * * The law will charge him with knowledge of the danger. Not only so, but the law will charge him with acting in heedless and reckless disregard of his own safety, for no person, exercising even the slightest degree of care for his own safety, would voluntarily enter or voluntarily remain in a motor vehicle being driven by one known to him to be intoxicated. It has been said that ‘Intoxication temporarily destroys the faculties essential to safe driving, and this is of such common knowledge that no one with sense will submit to the peril of riding with such a person.’ Hemington v. Hemingtbn, supra (221 Mich. 206, 190 N.W. [683] 684); Taylor v. Taug [17 Wash.2d 533, 136 P.2d 176], Moreover, one so charged in law with knowledge of the danger, but who nevertheless voluntarily enters or remains in the vehicle, will be held to have voluntarily exposed himself to the risks involved or to have ‘put himself in the way of’ the danger ‘of his own free will and as the result of an “intelligent choice” ’ so as to bar a recovery under the test of the volenti doctrine laid down in Wood v. Kane Boiler Works, supra ([Tex. Sup.] 238 S.W.2d [172] 175). It follows as a matter of course, that it will be held as a matter of law also that entering or failing to leave the vehicle under the circumstances is a proximate cause of any injuries sustained by reason of the intoxication of the driver.” Schiller v. Rice, Tex.Sup., 246 S.W.2d 607, loc. cit. 613-614. In the same opinion, [page 615, pars. 9, 10] we’ said: “In the light of the evidence and the *795findings of the jury it is our conclusion that the plaintiffs were heedless and feckless of their own safety as a matter of law, and that, as a matter of law, this heedless and reckless disregard of their own safety was a proximate cause of their injuries. It is our further conclusion that the plaintiffs voluntárily exposed themselves to the risk of injury by failing to leave the automo'bile arid ‘put themselves in the way of danger’ of their own free will.”
The plaintiffs in the 'Schiller case had opportunity to leave the car driven'by thé drunken driver after the driver had committed acts of negligence, and had on that occasion driven without regard to the life and limb of the occupants of the car. In our case the girls had no opportunity to leave the car from the time Jerry, over their protests and entreaties to cease such conduct, began to speed and was going 110 miles per 'hour immediately prior to the accident. I agree that the Schiller case was correctly decided and correctly applied the law to the facts of that case, but I cannot agree that it is controlling in this cause. -To my mind, there is a vast difference in the act of entering the car with, and continuing to ride with, a known intoxicated driver after he has' been guilty of negligent acts, and that of two girl schoolmates getting in the car of a known weak, unfit; incompetent, etc., driver with whom they had previously ridden without suffering injury. We must take into consideration the facts and circumstances of this case in deciding whether or not a fact issue is presented. In my opinion, there being a fact issue present in the case, I think the jury was in a much better position to decide whether or not these plaintiffs acted as ordinarily prudent persons would have acted under the same or similar circumstances present in this cause than are we, of the appellate courts, who do not observe the demeanor and behavior of the witness on the stand, or hear his testimony, but must rely solely upon the cold, printed record. I cannot agree that these plaintiffs were guilty of contributory negligence, as a matter of law.
SMITH and CULVER, JJ., join in this opinion. ...