Edenton v. McKelvey

On Petition to Rehear.

The plaintiff in error has petitioned the Court for a rehearing, complaining that no consideration was given to the question of the speed of the' automobile; that since *663the plaintiff testified she knew he was driving “too fast,” and not having protested “personally and continually” to the driver of the automobile, her negligence in this regard should bar her right of action. Contention is made that this is a question of law for the Court.

The petitioner makes the further insistence that the Court was in error in holding that her knowledge of Edenton’s intoxication, and her riding with him after such knowledge which she had or such which she should have had by the exercise of reasonable care, was sufficient to take the case from the jury.

In response to the first contention that we overr looked and gave no consideration to the negligence of plaintiff in riding with defendant when she knew he was driving “too fast,” we think that counsel himself overlooked that part of the opinion in which reference was made to the fact that when the driver, Edenton, was cautioned by Hamrick that he was driving too fast that he thereupon reduced his speed, or to use the language of the witness, “slowed down.” The accident happened very shortly thereafter. We readily agree with the contention that a guest should continue to protest against fast and reckless driving; in other words, he “cannot rely upon the care and [vigilance] of the driver.” Louisville & N. R. R. v. Anderson, 159 Tenn. 55, 64, 15 S. W. (2d) 753, 755.

It is true the Court used the language that the “duty was personal and continuing,” citing Dedman v. Dedman, 155 Tenn. 241, 246, 291 S. W. 449; Stem v. Nashville Interurban Ry., 142 Tenn. 494, 221 S. W. 192, and other cases. But where a guest is shown to have warned the driver by having her companion, who sits beside her on the rear seat, caution the driver about his excessive speed that this is a substantial compliance with the rule *664as to personal remonstrance. This actually took place in the instant case. Inasmuch as the driver ‘ ‘ slowed down,” we are justified in presuming’that there was no occasion for’further remonstrance. Moreover, she was in the hack seat of the car where she could not see the speedometer. It was dark and all the plaintiff knew was that the automobile was being- driven at . a speed which she disapproved. She is presumed to have been in the exercise of due care.

The Court had no intention of relaxing the rule which requires constant care and vigilance on the part of a guest in an automobile. It. was not deemed necessary to distinguish the cases announcing the rule of continued vigilance from the instant case since our original opinion made no departure or exception to those cases as well as other previously well considered opinions.

The petitioner’s further complaint that the Court made no distinction between the plaintiff’s ‘ ‘ actual knowledge ’ ’ of defendant’s intoxication and her duty to learn the extent of it, we concede that it was her duty to be especially observant of the driver if his conduct and appearance was thought to be unusual. She stated the extent of her observation, which we think was that of an ordinarily prudent person. This is all the law required. Upon her statement, and other facts submitted to the jury, the trial judge properly submitted the issue as to whether or not a person in the exercise of reasonable care and foresight would consider it safe or unsafe to ride with the defendant as his guest.

The petition is denied.

All concur.