DISSENTING OPINION
Jackson, J.I can not agree with the majority opinion for the following reasons. The factual situations, preceding and at the time of the crash, are adequately discussed in the opinion of the Appellate Court in *430Buroker v. Brown (1959), 159 N. E. 2d 140, hence need not be amplified here.
A review of the facts and the evidence reveals that the only paragraph of complaint upon which the verdict and judgment of the trial court could be sustained concerns the “wanton and wilful misconduct” exception to the guest statute. Acts 1937, ch. 259, §1, p. 1229, being §47-1021, Burns’ 1952 Replacement.
The case of Brown v. Saucerman (1957), 237 Ind. 598, 145 N. E. 2d 898, laid down the rule that excessive speed alone is not a sufficient basis to justify a probable result in injury to a guest. It held that the factors combined with excessive speed are determinative in each case.
The following statement in 5A Am. Jur., §532, p. 565, adequately sums up the rule laid down in Brown v. Saucerman, supra.
“In order that one may be held guilty of wilful or wanton conduct, it must be shown he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.”
The case at bar presents a paradoxical situation. Here were three persons riding in the front seat of a car traveling at a high rate of speed. Appellee has attempted to show a continuous course of conduct, he claims that upon becoming aware of his danger, there was no time to warn or admonish the driver of the danger, yet the crash occurred approximately two miles from the point at which appellee claims he first became aware of the danger. Objectively, the situation seems to be one where, either none of the occupants were *431aware of their hazardous position, or that all of them, including appellee, acquiesced in it.
“Excessive speed alone does not constitute gross negligence, wilful or wanton misconduct, disregard of the safety of others, recklessness, or the like, but is a factor to be considered along with other circumstances in determining whether the driver was guilty of such conduct.” 5A Am. Jur., §537, p. 569.
Under the circumstances here, it is difficult to see how the facts when tested objectively, can present a case of wilful and wanton misconduct.
The petition to transfer should be denied.
Note. — Reported in 172 N. E. 2d 849.