dissenting:
The majority opinion holds that Martha Hancock was a passenger or guest in the car and that the well settled rule of law applicable to her is, where a passenger is in a private vehicle by invitation and is exercising no control over the driver, and is injured through the combined negligence of the driver and a third person, the negligence of such driver cannot be imputable to the passenger. If precluded from recovery it must be because of his own independent negligence. Virginia Railway and Power Company v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838; Virginian Railway Company v. Farr, 147 Va. 217-228, 229, 136 S. E. 668; Norfolk and Western Railway Company v. James, 147 Va. 178-187, 136 S. E. 660.
The above cases and all the cases on this subject hold if the guest fails to look and listen, and does not *845know that the driver is running heedlessly into danger, he is not negligent, as the law does not impose upon him the duty of control or direction of the driver or to anticipate that the driver will be negligent. The law does not require a guest to presume or anticipate that the driver will be negligent, but the law permits him, unless the contrary appears, to presume the driver will manage the ear carefully and properly. “A duty to give such advice implies a duty to heed it, and the rear seat driver is responsible for many accidents as the score stands without judicial precedent. The plaee for a passenger who knows better than a driver of a car when, where and how it should be operated is at the wheel.” Director General v. Lucas, 130 Va. 212, 217, 107 S. E. 675, 677.
The opinion then holds that Martha Hancock was located further to the front of the car than the driver, and if she had looked to the west, could have seen the train, because the photographs showed that twenty-five feet from the track all occupants of the car could see a train 284 feet to the west, therefore, she was guilty of such independent negligence that barred her recovery, and the fact that her back was turned to the west from direction the train was approaching was no excuse for not looking.
These photographs were taken in January after the accident when the leaves were off the honeysuckle upon the fence upon the top of the railroad cut, and the accident occurred in the summer when it was in full foliage. The plaintiff’s evidence proved that the noiseless train could not be seen until car got within ten feet of the south rail of the track. This is admitted in the defendant’s grounds of demurrer where it says: Because the train could be seen when the car got within ten feet or more of the track.
*846•If Chapman’s Admr. v. Hines, 134 Va. 274, 115 S. E. 373, is the law in Virginia, and there was only ten feet in which the train could be discovered and no bell was rung or whistle blown, which must be admitted as proven upon the demurrer to evidence, then the court cannot hold Cole the driver was negligent as a matter of law for failure to discover the train and avoid the accident.
I have never seen a case and I do not believe one can be found where upon a demurrer to evidence where the demurrant waives his evidence, in conflict with the demurree’s, and admits the truth of the demurree’s evidence and all just inferences arising from the same; where the court has adopted the waived evidence and based its judgment thereon.
But it may be contended that, no matter what was the distance between the cut and south rail in which the train might have been seen, Martha Hancock sitting in the lap of Madison with her back to the track nearer the front of the car and could have seen it sooner than Cole the driver, therefore, she was guilty of contributory negligence that caused the accident. It does not appear how large any of the parties were and the defendant offered no evidence to prove she was nearer to the front of the car than the driver, and this is mere conjecture. If she was an average person she would have been only eighteen inches nearer the front with her back turned, which seems to me to be de minimis.
But this question of the location of a passenger in a vehicle imposing the duty on him to look in both directions has been decided adversely to the majority opinion by the Supreme Court in Atlantic and Danville R. Co. v. Ironmonger, 95 Va. 625, 29 S. E. 319; the railroad asked the court to give an instruction making *847it the duty of the passenger, if so located in the vehicle as to have an opportunity to discover the danger and to inform the driver of it, and if he failed, then he was guilty of negligence. The instruction asked is as follows:
“The court instructs the jury that the rule that the negligence of a driver of a vehicle is not to be imputed to a passenger is not applicable where the passenger is so located in the vehicle as to have an opportunity to discover the danger and to inform the driver of it, and if the jury believe from the evidence that the plaintiff was so situated in the carriage as by the use of her senses of hearing or sight she might have discovered the approaching danger in time to inform the driver of it, and for him to have avoided it, and did not do so, then they must find for the defendant, unless they further believe from the evidence that the defendant might, after discovering the plaintiff’s negligence, have avoided its consequences.”
About this instruction Judge Buchanan said:
“This instruction assumes that the rule of law, that the negligence of the driver cannot be imputed to the passenger, is not applicable where the passenger is so located in the vehicle as to have an opportunity to discover the danger and inform the driver of it. Where the passenger, as in a case like this, is in the vehicle by the invitation of the owner and driver, and is exercising no control over him, the negligence of the driver cannot be imputed to the passenger. If the passenger has himself been guilty of negligence he is precluded from recovery by reason of his own negligence, and not because of the negligence of the driver.
“Upon the question of her own negligence instruction No. 5, given for the plaintiff in error, stated the law as strongly in its favor as it was entitled to. The court *848did not err in refusing to give the rejected instruction (No. 6).”
Instruction No. 5: “The court instructs the jury that the rule requiring a traveler on a highway, on approaching a railroad crossing, to have his senses on the alert to discover and avoid danger from an approaching train, is not relaxed in favor of one who is being carried in a vehicle owned and driven by another; it is no less the duty of the passenger, where he has the opportunity to do so, than of the driver to learn of danger and avoid it, if practicable. That plaintiff was seated in a carriage, owned and driven by one Francis Reiger, that the curtains were up so that the plaintiff could see in the direction from which the engine was coming, and that by looking and listening the plaintiff could have discovered the approaching engine in time to avoid it, then they must find for the defendant even though they may believe that the defendant was negligent, unless the defendant, after discovering the negligence of the plaintiff, could have avoided its consequences.”
According to instruction number five given in the Ironmonger Case, it was the duty of Martha Hancock if the train had been approaching from the east and by the exercise of her sense she could have discovered the same, she should have done so and warned Cole.
It is impossible for me to discover from this record any other cause for Martha Hancock’s injury but the combined negligence of the defendant and the driver, Cole. The ground upon which the majority opinion is based never occurred to counsel upon either side of this ease, and was never mentioned in the argument before this court, nor is it suggested, much less specifically set forth, in its ground of demurrer as required in the mandatory statute, section 6117 of the Virginia Code.
The defendant, in its written grounds of demurrer, *849specified that Martha Hancock was engaged in a joint enterprise or pleasure adventure with Cole and Madison, and had the same duties to look and listen imposed upon her as was imposed upon them, and therefore Cole’s negligence was imputable to her. No suggestion is made of her duties as a passenger nor any suggestion that she was guilty of independent negligence therein.
It cited the cases of Washington and Old Dominion Railway Co. v. Zell, 118 Va. 755, 88 S. E. 309, and Bowman v. Pennsylvania R. Co., 179 Fed. 577, 103 C. C. A. 136, 29 L. R. A. (N. S.) 924, as authority to sustain its position. If the Zell Case decided what it claimed, then Cole’s negligence was Martha Hancock’s negligence and she cannot recover. Judge Prentis in the opinion of the court in the Gorsuch Case, supra, which was the first ease to pass upon this question after the Zell Case, established the law to be in Virginia that in order for the occupant of a car to be liable for the negligence of the driver he must have the right to control and direct the driver. The right to control and direct the driver is necessary before the driver’s negligence is chargeable to the other occupant of the car.
Judge Kelly, who delivered the opinion of the court in the Zell Case and certainly should know what he intended to decide, in Director General v. Pence’s Admx., 135 Va. 329, on page 345, 116 S. E. 351, 356, said: “But the ‘joint enterprise’ which will render the contributory negligence of a driver imputable to a person riding with him must invest such person with some voice in the control and direction of the vehicle. The rule is founded upon the doctrine of principal and agent. The passenger must be so related to the driver as that the maxim qui facit per alium facet per se is applicable.”
*850This same distinction and statement of the law is enunciated in the recent cases of Virginian Railway Company v. Farr, supra, and Norfolk and Western Railway Company v. James, supra. In the Farr Case the law as laid down in the Gorsuch Case and Pence Case, together with the James Case, are reaffirmed, and the court goes further and states that the Gorsuch and Pence Cases have restricted the rules of law in the Zell Case.
The case of Director General v. Pence's Admx., supra, makes clear the distinction between an occupant who has the right of control and direction over driver, and an occupant who is merely a passenger. In this case, as in the instant case, it was the contention of defendant that Stillwell, the driver, and Pence were engaged in a joint enterprise, therefore it was Pence’s duty to look and listen for the train, and his failure was contributory negligence that barred recovery. As authority for that position the defendant cited the Zell Case, supra; Virginia & Southwestern Ry. Co. v. Harris, 119 Va. 843, 89 S. E. 887; and Southern Ry. Co. v. Jones, 118 Va. 685, 88 S. E. 178, just as was done in this case, but the court overruled that contention and held that as a matter of law Pence was a passenger and had the right to rely upon the driver and the Zell Case had no application to the Pence Case, and the Jones and Skinner Cases also involved a different principle of law.
In the Pence Case, Stillwell and Pence were approaching a railway crossing in the day-time where there were three tracks. The Wheeler track on which was a box-car that prevented the main line from being seen, the passing track and the main line. Both parties, were upon the front seat, and the main line and train were plainly visible to both of them after they passed the Wheeler track, had they looked. Stillwell, the *851driver, stopped the ear before reaching the Wheeler track, and then started forward at about five miles an hour; the vision of the main line on which the train was moving widened from 340 feet after crossing the Wheeler track to 1,728 feet in the middle of the passing track. Neither party apparently looked in the direction from which the train was approaching. Stillwell, the driver, drove up the main line in front of the train and Pence was killed. The defendant claimed Pence was guilty of such contributory negligence in failing to look, and discover the train and warn the driver, that as a matter of law barred recovery. The court held there was nothing to make Pence believe that Stillwell would not stop the car and avoid the accident, and the evidence warranted the jury in finding Pence was not guilty of negligence in relying upon the driver.
It is plain that Supreme Court does not hold as law that when á traveler is about to cross a railway track, the track is notice of danger, and if the passenger fails to look in both directions and warn the driver he is guilty of contributory negligence. If Pence was not guilty of negligence in failing to warn Stillwell, how can Martha Hancock, when Cole slowed up as he approached the crossing, be declared negligent in not warning him if she had the right to rely on the driver, until she had reason to believe he was going to drive on the track?
The Jones and Skinner Cases were also relied upon in the Pence Case, but Judge Kelly distinguished those cases from that case, and some distinction is applicable in case at bar. That is failure to look in both directions and warn the driver is not per se negligence. He said on page 346 (116 S. É. 357): “The case of Va. S. W. Ry. Co. v. Skinner, 119 Va. 843, 89 S. E. 887, and Southern Ry. Co. v. Jones, 118 Va. 685, 88 S. E. *852178, both of which are relied upon very strongly by counsel for defendant are, as we think, distinguishable-from the case at bar by the fact that in both of them the negligence of the driver was necessarily apparent to-the passenger, whereas in this case the passenger was justified in assuming that the automobile would stop-before the collision occurred.”
The only possible distinction that the law can and does make between a person riding in a vehicle who has the right to control and direct the driver and a. passenger is that the latter may rely upon the driver until his negligence is apparent, whereas the former must exercise the same degree of care as the driver is required by law to exercise.
The majority opinion states that if the passenger is a-wife driving with her husband whom she knows is a careful driver she may rely on him, and construes theGorsuch Case to make that restriction. This construction is contrary to the Ironmonger Case and all the cases-in Virginia that are cited above, as far as I could discover them, and to the general rule in all other States, except Michigan and perhaps Wisconsin. Terwilliger v. Long Island R. Co., 152 App. Div. 168, 136 N. Y. S. 733, note Ann. Cas. 1913B page 684.
It is an uncontrovertible fact that the combined negligence of Cole and defendant was the cause of" plaintiff’s injury. The defendant specified in its-written grounds of defense that Martha Hancock and Cole were engaged in a joint enterprise. The ease-was argued before us upon that principle of law. The-plaintiff’s argument and authorities was to repel that legal contention. No mention or suggestion ' of the-ground upon which the majority has based its decision was ever suggested as far as I remember, and I doubt-if it"ever occurred to counsel on either side.
*853Section 6117 of the Virginia Code was enacted to cover in part just such a case as this. It requires the demur-rant to set out specifically its written grounds of defense, and forbids this court to consider any grounds not so specifically set out. If Martha Hancock was a passenger and not engaged in a joint enterprise, does not this mandatory statute require that it should set out specifically in writing; and further what her independent negligence was?
The Supreme Court has held this statute mandatory, and if grounds of defense are not set out specifically the court is without jurisdiction to consider them if the grounds set out are so general that two or more grounds are contained in one specification it cannot be considered. How then can defendant specify that plaintiff was engaged in a joint enterprise, and as such was negligent ■ in not looking in the direction from which the train was coming, and prevail on the ground that she was a passenger guilty of independent negligence? Are not these rights and duties as distinct as those of the driver and the passenger? No mention is made of the specific negligence of Martha Hancock, set out in the opinion. Black v. Daughtry, 130 Va. 24-31, 107 S. E. 694; McMenamin v. Southern Ry. Co., 115 Va. 822, 80 S. E. 596.
I have not an opportunity to read the cases cited from other jurisdictions, but from the statements of the general rule quoted, as with the Virginia cases herein discussed, I am satisfied that the same duty is not imposed by law upon a passenger as is imposed upon the driver.
The importance.of this decision to the profession is my apology for writing such a long dissenting opinion.