dissenting: There are several propositions of law, laid down in the opinion of the Court, with which I do not find myself in accord; and, hence, I am constrained to state briefly the reasons for my dissent.
At the outset it should be observed that the sufficiency of the plea of contributory negligence is challenged, for the first time, in the opinion of the Court. At no stage of the case, either here or below, has it been' questioned by any of the parties. Furthermore, giving a liberal construction to the allegations of the answer, which we are required to do under C. S., 535, 1 think the plea is fully adequate and entirely sufficient. Brewer v. Wynne, 154 N. C., 471; McNinch v. Trust Co., ante, 33.
“The uniform rule prevailing under our present system is that, for the purpose of ascertaining the meaning and determining the effect of a pleading, its allegations shall be liberally construed, with a view’’ to substantial justice between the parties. This does not mean that a pleading shall be construed to say what it does not, but that if it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision ’will not be so taken against him as to deprive him of it. Buie v. Brown, 104 N. C., 335. As a corollary of this rule, therefore, it may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in ally portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient.” Blackmore v. Winders, 144 N. C., 212.
Suppose a pedestrian upon the highway had been injured by this ill-fated car and Ruth Tyree had not been killed, can it be said and successfully maintained that she could not have been held responsible, along with the driver, for such injury, when the speed of the car at the time was “due entirely to her request”? Clark v. Sweaney, 175 N. C., 280; *349White v. Realty Co., 182 N. C., 536. This is tbe substance of tbe defendants’ allegation of contributory negligence; and, if it be sufficient to render ber liable in tbe supposed case, it ought to suffice as a plea in bar of tbe plaintiff’s right to recover here. C. S., 523, and cases cited thereunder. So much'for tbe sufficiency of tbe plea. I regard tbe present decision of tbe Court unfortunate in this respect. It will rise up to trouble us in tbe future.
I am also of tbe opinion that tbe evidence offered by tbe defendants, tending to support their plea of contributory negligence, was competent and should have been admitted by bis Honor below. Its weight and credibility, of course, were matters for tbe consideration of tbe jury, and not for tbe Court. Loggins v. Utilities Co., 181 N. C., 227. Tbe books are full of cases sustaining recoveries where tbe evidence of negligence was not anything- like as strong as that offered to show tbe contributory negligence of tbe deceased in tbe ease at bar. I do not say tbe evidence would or should have been accepted by tbe jury as true, but it was entirely competent, and it was error in tbe court below not to have submitted it to tbe jury for its consideration.
It is stated in tbe opinion of tbe Court that “Gowan Caldwell testified that about three-quarters of an hour before leaving tbe Country Club for home, while tbe witness and Bynum were talking in tbe presence of Ruth Tyree about having a race with John Casper at a very rapid rate of speed, ‘Ruth said she wanted to go as fast as they bad been going,’ Bynum said, ‘Let’s go now,’ to which she answered, ‘No, let’s wait until we go home,’ and Bynum replied that be would run as fast as she wanted to.” I do not so understand tbe record. This evidence was excluded. Tbe witness was permitted to give tbe above testimony, in tbe absence of tbe jury, and not in its presence, and this only for tbe purpose of incorporating it in tbe statement of case on appeal. No witness was allowed to testify, in tbe presence of tbe jury, as to anything said by tbe deceased while at tbe Country Club, or just before tbe fatal accident. All statements made by ber, relating to bow fast she wanted to ride or why she wanted to go at a rapid rate of speed, were carefully excluded. This evidence, as offered by tbe defendants, went to tbe very heart of their plea of contributory negligence, and it must be competent. That which is logically relevant is legally relevant, unless excluded by statutory enactment or some rule of evidence; and none has been shown here. It happens, in many cases, that tbe very fact in controversy is whether certain words were spoken and not whether they are* true or false; and this is our. case! “Tbe law may be regarded as settled that wherever, for any reason, an extrajudicial statement is constituently relevant by reason of its bare existence, proof of it will be received.” Cbamberlayne on Evidence, sec. 2595; Means v. R. R., 124 N. C., 574.
*350All statements made by the decedent a short time before starting on the fatal ride, and all utterances made by her while in the car and only a moment or so before the accident, were excluded, though the defendants offered to prove them by disinterested witnesses and persons not parties to the action. The defendants offered to show by the witness Gowan Caldwell that decedent, while at the Country Club, said she wanted to run at the same rate of speed that Bynum Tudor had been racing, to which Bynum replied: “Let’s go now,” and to which she said, “Let’s wait until we go home.” Also, they offered to prove the following by the witness Phil Cranford: 'We returned from racing with John Casper, and something was said about going 60 miles per hour, and Miss Ruth said she wanted to drive 60 miles per hour, and Bynum said : 'Let’s go now,’ and she says, 'No, wait until we start home,’ and Bynum says: 'All right.’ Also, defendants offered to prove by the witness George Tudor, Jr., the following: 'Soon after leaving the Country Club she requested that Bynum get her home in a hurry in order to get home before Miss McKinsey did because if 'she didn’t get home before Miss McKinsey did her mother would think she had been riding after the close of the dance.’ ”
This evidence was offered to establish the allegation of contributory negligence to the effect that Bynum Tudor’s manner and method of driving the car was attributable to the direction and request of the decedent.
It was stated on the argument that his Honor excluded this evidence under authority of Dowell v. Raleigh, 173 N. C., 197; but, to my mind, the instant ruling is not supported by what was said in that case. There plaintiff’s intestate was driving- a wagon along a rough street in the city of Raleigh. The king-pin broke, throwing the wagon and driver to the ground and instantly causing his death. The question was whether the defective condition of the street or the defective condition of the wagon was the proximate cause of the injury. The trial court received evidence that decedent had said the king-pin was in a defective condition. This Court held that such declaration was inadmissible, as an admission, because it was not made by a party to the action or by one in privity with him, or as a declaration against interest since decedent, before the accident, had no interest to serve or to disserve.
In the Dowell case, supra, in effect, decedent said: “My wagon is defective.” In this case decedent in effect said: “Wait until we go home ' to drive 60 miles per hour,” and “Get me home in a hurry ahead of my guest.” The Dowell utterance contained a-statement of fact, while the Tyree utterance contained no statement of fact, but was, in form, a request or an entreaty. The Dowell utterance was offered to prove the truth of the matter asserted in it; the Tyree utterance was offered as *351itself constituting a fact in issue. The Dowell utterance was offered as evidence of an independent fact; the Tyree utterance was offered as the fact itself and not as an admission or declaration against interest, nor as evidence of an unrelated fact. Herein lies the distinction; and it seems to me that the excluded evidence in the instant case was clearly competent.
The request of decedent, made after she and the defendant had started on their trip home and immediately before the accident, is competent for another reason. This was a part of the res gestee in that it was so closely related to the accident as to form a part of its details. In the Dowell case, supra, the Court stated that on an examination of the cases apparently opposite it would be found that they were put upon the principle (or largely influenced by it), that the declarations, by reason of the fact that they were made at the very time of the injury, or of their being concomitant therewith in some degree, and explanatory thereof, became pars rei gestee. The instant utterance or request, made, as it was, from one to three minutes before the accident, and bearing directly upon it, should have been admitted as part of the res gestee.
It is stated in the opinion of the Court that Bynum Tudor did not testify that he was speeding at the request of the deceased. How could he, when his Honor had ruled that all statements made by her were incompetent? He alleges it in his answer, and made every effort to establish it by disinterested witnesses. 'What more could he do ?
Again, in fairness to the defendants, I think it should be said that while there is some evidence tending to show that Bynum Tudor was drinking on the occasion in question, the overwhelming weight of the testimony is that he was not. It is to be regretted, however, that according to his own admission he has taken several drinks recently. This, no doubt, weakened his testimony before the jury. But it is not my province to lecture or to criticise; I am only stating both sides of the question. It also appears in the statement of the case that Bynum Tudor was racing back to the city with Fin Horton. I think this, too, is a misapprehension of the record.
In the recent case of Langley v. Southern Ry. Co. (S. C.), 101 S. E., 286, it was held that where an automobile driver in driving an automobile to a depot, heeded the directions of occupants who wanted to board a train, the management of the automobile was the concurrent act of driver and occupants, and the negligence of the driver in driving at excessive speed was imputed to an occupant precluding recovery from the railroad for injuries at crossing. The Court said: “The evidence is undisputed that plaintiff’s wishes as to speed were respected and obeyed. Clearly, therefore, the evidence was susceptible of the inference that she was responsible for the rate of speed at which the automobile was being *352run; It matters not whether she had the 'right’ to control the driver, since it is not disputed that she did in fact control him.”
In 20 R. C. L., p. 165, it is stated: “One riding in a car driven by another, though a mere guest and having no control over the person driving the car may be guilty of such negligence as to preclude a recovery for a personal injury resulting from negligent operation of the car, e. g., if the driver, from intoxication, is in a condition which renders him incapable of operating the car with proper diligence and skill, and this fact is known or palpably apparent to one entering the car, entering or remaining in it, may be held negligence on the part of the guest; and, likewise, a guest may be held negligent who consents to stay in an automobile when the driver attempts to run it after dark without light on an unfamiliar road.” Lynn v. Goodwin, 170 Cal., 112; L. R. A., 1915 E, 588; Powell v. Berry, 145 Ga., 696; L. R. A., 1917 A, 306, and note; Rebillard v: Minneapolis B. Co., 216 Fed., 503; L. R. A., 1915 B, 953.
In the note appearing in Ann. Cas., 1916 E, at 268 et seq., the writer says: “But the courts have declared certain conduct on the part of the occupant to be negligence as a matter of law. Thus it has been held to be negligence on the part of the occupant to fail to remonstrate with the driver when he is engaged in reckless driving. Jefson v. Crosstown St. Ry., 72 Misc., 103; 129 N. Y. S., 233. And it has been held that if the passenger was aware that the operator was carelessly rushing into danger, it was incumbent on him to take proper steps for his own safety, but when the road was strange to the passenger, and there -was nothing to make him aware of approaching danger, it could not be said as a matter of law that he was negligent in failing to call the chauffeur’s attention to the danger of the situation. Thompson v. Los Angeles R. Co., 165 Cal., 748; 134 Pac., 809. The occupant of an automobile has been held to be guilty of contributory negligence in riding in a motor car on a dark night, without lights, over roads which neither the driver of the car nor any of the persons with him in the car were familiar. Rebillard v. Minneapolis R. Co., 216 Fed., 503; 133 C. C. A., 9; L. R. A., 1915 B, 953.
“Continuing to ride in an automobile after knowledge that the chauffeur is intoxicated, has been held to show independent negligence on the part of the passenger. Lynn v. Goodwin, 170 Cal., 112; L. R. A., 1915 E, 588. See, also, Pittsburg R. Co. v. Kephert (Ind.), 112 N. E., 251. And in a case wherein it appeared that both the driver and the occupant were drunk, the occupant was held to be guilty of independent negligence. Cunningham v. Erie R. Co., 137 App. Div., 506; 121 N. Y. S., 706.”
There was nothing said in the case of Pusey v. R. R., 181 N. C., 137, which militates against the principles announced in the cases above *353cited. There plaintiff’s 'intestate was killed because of the alleged negligence of the railroad company in maintaining a crossing in á defective or unsafe condition; the defense being that the driver of the automobile in which plaintiff’s intestate was riding was driving at an excessive rate of speed, and that plaintiff’s intestate was guilty of contributory negligence in failing to remonstrate with the driver and acquiescing in the rate of speed. There was no evidence that the decedent had any control over the car, or had anything to do with the driving of it, nor was there any evidence that the decedent knew that the car was being operated at an excessive rate of speed.
In the case at bar it should be borne in mind that the driver of the automobile was a boy barely sixteen years of age; that decedent was a girl of about the same age; that she was in the high school while he was only in graded school; that she was more mature than he; that a short time before they started home she, with knowledge that he had been driving at that rate of speed, stated she would like to ride sixty miles per hour, and the defendant Bynum Tudor had agreed that on the return trip he would drive at that rate of speed in accordance with her request. Moreover, after they had started home, and only a moment or so before the fatal accident, decedent requested the defendant Bynum Tudor to overtake a car that had departed ahead of them and to get her home before her own guest should reach there.
Although the decedent was not the owner of the car, and was not physically engaged in driving it, at the time of the injury, the above testimony raises a strong inference of fact that the car was being recklessly operated at her request and in accordance with her wishes.
It should also be remembered that the relation of guest and host, which existed here, was the result of an offer on the part of Bynum Tudor to take Miss Tyree to the dance, and her acceptance of 'that offer. Subsequently that relationship was altered, in a measure, at the request of the guest; the host agreeing to operate the car in a manner agreeable to her wishes and in accordance with her direction. The guest, therefore, by sharing and participating in the running of the car to an appreciable extent, if she really did, necessarily assumed a part of the responsibility for its operation; at least, to my mind, the evidence.was sufficient to submit the question of her contributory negligence to the jury.
Contributory negligence, such as will bar a recovery, is the negligent act of a plaintiff, or plaintiff’s intestate, which, concurring and cooperating with the negligent act of a defendant, or one acting for him, thereby becomes the proximate cause of the injury, or the cause without which the injury would not have occurred. The same rule of due care, which the defendant, or the one acting for him, is bound to observe, applies equally to the plaintiff or to the plaintiff’s intestate; and due *354care means commensurate care, under the circumstances, when tested by tbe standard of reasonable prudence and foresight. O’Dowd v. Newnham (Ga.), 80 S. E., 40. Such contributory negligence may consist in doing the wrong thing at the time and place in question, or it may result from doing nothing when something should have been done. This is the universal rule.
In answer to the suggestion contained in the majority opinion that the view herein expressed is but an effort to put the blame on “the woman and not the man,” I am content to reply in the words of Leviticus (19 :15) : “Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor honor the person of the mighty; but in righteousness shalt thou judge thy neighbor.”
Upon the record I think the case should be remanded for a new trial.
Waleer, J., concurring.