dissenting:
Plaintiff was injured while riding as a passenger on the automobile of the defendant, going from Raleigh to Charlotte, the accident occurring on the westerly side of Albemarle. Plaintiff alleges that the defendant drove his automobile at a high and dangerous speed; that he continued to drive the same at a high and dangerous speed in the face of and into a fast approaching storm and rain, and into a sharp curve in the road, and that his automobile was equipped with tires that were unsafe. She bases her right to recover upon evidence which she contends sustains these allegations.
She testified that the defendant, after leaving Raleigh and until the' accident, drove his car at a rate of speed of 55 or 60 miles an hour; that after leaving Albemarle she observed a rapidly approaching rain or storm; that after the rain came the defendant continued to operate his car at said rate of speed without slowing down for a period of a couple of minutes, and into a sharp curve. At the rate of speed she testified he was going he drove his automobile from one to two miles upon wet pavement and in a rain storm without slowing down. And yet she states that she did not protest or object or call his attention to *704tbe approaching storm. Sbe does say that sbe and her daughter, who was on the rear seat, discussed the storm.
Upon this evidence was it not the duty of the judge to submit an issue to the jury on the defendant’s plea of contributory negligence?
There is a wide variety of rules applicable to the conduct of a guest in an automobile. At one extreme is the requirement that the guest must exercise the same care as the driver. Read v. N. Y. Cent. & H. R. R. Co., 219 N. Y., 660, 114 N. E., 1081. At the other extreme is the rule that the guest must remain silent. Alost v. Wood and Drayage Co., Inc., 10 La. App., 57, 120 So., 791; Telling Belle Vernon Co. v. Krenz, 34 Ohio App., 499, 171 N. E., 357; Schlosstein v. Bernstein, 293 Pa., 245; 142 Atl., 324. Between the two extremes lies the majority view— that a guest is bound to use ordinary care under the circumstances. 9 N. C. Law Review, 99; 11 ibid., 349, 350, and cases cited to this effect in these notes.
The cases in this State indicating the duty of a passenger are quite limited. The doctrine of contributory negligence as applied to guests in automobiles appears to have been lifted from the older law of master and servant, and was first treated in this State as “imputed negligence” in cases in which the guest had some degree of control over the driver of the automobile. Pusey v. R. R., 181 N. C., 137, 142, and cases cited. But since there are relatively few instances in which the guest has any real control over the driver, it was necessary to adopt a broader rule. This was first done in King v. Pope, 202 N. C., 554, in which the opinion quoted from Huddy, Automobile Law, Vol. 5-6, 9th Ed. (1931), at p. 265, approving a statement to the effect that the duty of the guest to remonstrate against excessive speed exists, but as it is not an absolute One, it usually presents a question for the jury. That case also quoted at length from Krause v. Hall, 195 Wis., 565, 217 N. W., at p. 292, which recognizes the duty to protest, but points out that since protests can appeal only to the driver’s sense of courtesy and are likely to arouse his displeasure, whether a person in the exercise of ordinary prudence would have continued to remain in the car or insisted upon leaving the car is usually a matter for the jury. The King case, supra, for the first time, numbered North Carolina among those states following the moderate or middle-ground rule — -that a guest is bound to exercise that degree of care which would be exercised by a person of ordinary prudence under the circumstances. The trial judge in that case laid down this rule, and the Court in the opinion approved it. The same rule applies here as in other negligence cases. In Norfleet v. Hall, 204 N. C., 573, the opinion declared it to be “conceded” that, under certain circum-' stances, a guest has the duty of protesting against excessive .speed, and upon failing to do so is barred from recovery. Thus we find the funda*705mental rule accepted in North Carolina, but it is significant that tbe Court, as yet, applies it with reluctance, as indicated by tbe fact that in both of these cases in which the rule has been laid down the opinions declared that the rule did not apply (in the King case, supra, it was intimated that the duty did not exist where the driver’s negligence is willful and wanton, and in the Norfleet case, supra, it was noted that the guest did not have sufficient time to protest). Accordingly, we have a rule established but as yet without the essential distinctions and refinements of a mature rule of law; naturally the Court has been cautious in applying such a rule.
Our Court has not yet indicated whether a distinction is to be noted between the duty to warn against a generally dangerous condition (i.e., excessive speed, wet pavement) and the duty to point out a perceived danger (i.e., approaching train, sudden cloudburst). Justice Brogden, in his dissent in the Norfleet case, supra, vigorously assaulted the entire philosophy of our contributory negligence rule as being too lenient upon the gratuitous guest and too severe upon the driver, declaring in his usual laconic and colorful fashion that to permit a “thumb-rider” to recover from a driver transporting him as a courtesy was equivalent to saying that “a person can recover damages for being bitten by his own dog.” Norfleet v. Hall, supra, at p. 580. There is tremendous force in his observations. Assuming, however, that the rule to which he objected is now established, there is yet the possibility of determining fine points and hair-line distinctions against the gratuitous guest and in favor of the neighborly driver. The law should not encourage individuals to sue their relatives, their neighbors, and kindly friends when they are overtaken by mere accidents.
“The law is well settled by authorities too numerous to cite that a gratuitous guest cannot recover for his host’s negligent operation of an automobile, if conscious of apparent danger or faced with such conditions and circumstances as would herald danger to a reasonably prudent man, he fails opportunely to protest or acquiesces therein.” Dale v. Jaeger, 44 Idaho, 576, 258 Pac., 1081, 1082. “Where possible danger is reasonably manifest to an invited guest, and she sits by without warning or protest to the driver and permits herself to be driven carelessly to her own injury, she becomes a coadventurer in the risk, and is thereby barred of recovery.” Clise v. Prunty, 108 W. Va., 635, 152 S. E., 201, 203. To the same effect see Cyclopedia of Automobile Law, Huddy, 9th Ed., Vol. 5-6, sec. 140; Cyclopedia of Automobile Law and Practice, Blashfield, Perm. Ed., secs. 2413, 2414; Automobiles, Berry, 7th Ed., 5, 171, 172, and numerous cases cited in these texts.
Usually the law embodies the playing rules of good sportsmanship. If I am correct in interpreting the everyday social and business ethics *706of our times, there was evidence indicating that the plaintiff, berself at fault, here violated the rules of good sportsmanship by charging her husband with negligence when, in my opinion, she likewise violated the mandates of the law. According to her testimony they were both “offside,” but he alone suffers the penalty.
In this case the driver was occupied at the wheel while driving at' a high rate of speed. The guest saw the sudden cloudburst as it approached. The evidence is conflicting as to whether she warned him at •all, and it is even more doubtful that the warning protest, if given, was vigorous and insistent. She was satisfied to trust her husband’s judgment, though she saw impending danger possibly unknown to him. Why should the court be “more solicitous of her welfare than she was” for her own safety? If she was silent she acquiesced in his negligence. If she spoke, it is for the jury to say whether her words amounted to a protest sufficient to free her from the natural liability for passive acceptance of another’s negligence. It is conceded that it is her duty to warn the driver of generally dangerous conditions, if the danger is a sudden one perceived by her and possibly not perceived by the driver, the duty to warn the driver is even stronger, and it becomes even more imperative that there be ample proof of her protest. Here there was a duty upon her to protest, and the evidence that she discharged this duty is weak in two respects: (1) There is conflicting evidence as to whether she entered any protest, and (2) if she did protest, her language is not given and the force with which it was uttered is not described.
This is a case in which a wife is suing her husband. It is not difficult to read between the lines and ascertain that while the parties to this action contemplate that the recovery will remain in the family, they do not anticipate that the judgment will be paid by a member of the family. If, in fact, liability is sought to be placed upon another who is not a party to the suit, that party is entitled to have the case tried in accord with the law and to have every legitimate defense presented to the jury. In my opinion the evidence is such as to require the submission of an issue of contributory negligence. For that reason there should be a new trial.
Stacy, C. I., and WiNBOBNe, J., concur in dissent.