(dissenting)—I dissent because the law must recognize that the automobile is the biggest killer of all time and that the application to automobile accident cases of rules developed during the preceding century regulating rights and liabilities arising out of horse-drawn traffic accidents is no longer justified.
“ . . . the law must, especially in contemporary conditions of articulate lawmaking by legislators, courts, and others, respond to social change if it is to fulfil its function as a paramount instrument of social order. ...” Friedmann, Law in a Changing Society, Preface, ix.2
Here the negligence of the driver of the car is not in dispute. The issue is the responsibility of the owner there*804for. This responsibility should rest upon a duty owed by him to society when he commits to another the operation of his automobile upon public highways. The tests applied by the court enable the owner to immunize himself, while, in my view, the purpose of the law should be to protect society.
Fifty-three years ago, in Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, this court took the wrong path in deciding that the automobile was not a dangerous instrumentality.3 The court then stated:
“ . . . We do not think that an automobile can be placed in the same category as locomotives, gunpowder, dynamite, and similarly dangerous machines or agencies. . . .”4
To sustain this conclusion, the court relied upon Huddy, Law of Automobiles (1st ed., 1906), 15, chapter 3, § 2, from which the court quoted the following 1905 statistics:
“ ‘. . . As bearing on this question, it has been stated by authority that out of a total of 3,482 deaths reported to the coroner’s office in the city of Chicago for the year 1905, only five were caused by automobiles. For every death caused by an automobile in the city of Chicago there were more than seventy deaths caused by railroad accidents. *805Twelve people were killed by wagons to every one who met death at the hands of an automobile.’ ”5
Curiously, eleven years later the court stated in Moore v. Roddie, 103 Wash. 386, 174 Pac. 648:
“An automobile is a dangerous instrumentality. . . . ”
but recanted on rehearing eight months later:
“We are not now disposed to adopt the daring innovation, as a legal principle, that an automobile is, per se, a ‘dangerous instrumentality.’ ” Moore v. Roddie, 106 Wash. 548, 180 Pac. 879.6
The nation’s population by the 1900 census, the last one preceding Jones v. Hoge, supra, was 76 million, but since has more than doubled. The census bureau’s estimate of July, 1958, was 174 million. The increase in the number of automobiles has been even more astronomical. In 1909, the nation had 250 thousand automobiles, but, by the end of 1910, this had increased to 400 thousand. In 1958, there were over 67 million registered motor vehicles with ovei 79 million registered drivers. But the metamorphosis of the automobile itself has been even more phenomenal. A comparison of the two is akin to that of an Indian dugout canoe and an atomic powered submarine. This is emphasized by the contrast of the present sixty-mile-per-hour speed with the now curious statute regulating speed at the time of the decision in Jones v. Hoge, supra.7
“No vehicle yet devised by man has proved ... so ‘convenient and useful’ ... as the automobile. Nor has any mode of travel had such appalling consequences to life and limb. . . . ” 1 Blashfield, Cyclopedia of Automobile Law and Practice, 1, § 1.
*806By 1951, one million people in this nation had met death in automobile traffic mishaps, more than the fatalities in all of the nation’s wars. In the year 1958, the last one for which reliable statistics are available, there were 37 thousand traffic fatalities.8 Studies indicate that any significant reduction in this incidence of destruction is but wishful thinking. Thus it is that the court’s 1907 hypothesis that the automobile is not a dangerous instrumentality is slain by the facts.9
The many statutory traffic regulations have public protection as their object. The financial responsibility act has the same purpose. Laws of 1959, chapter 38, p. 366; RCW 46.24; RCW 46.28. Such statutes are a partial response to a recognition of the inherent danger of motor vehicle traffic.
We are admonished by Art. I, § 32, of the state constitution:
*807“A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.”10
Logic and experience alike demonstrate that we should apply to the present problem not the rules developed in the preceding century to govern horse-drawn traffic, but, instead, the law applicable to dangerous instrumentalities.11
Forty years ago the supreme court of Florida did so in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A. L. R. 255, in which it stated:
“Wild animals and high explosives are dangerous per se; that is, they may inflict injury without the immediate application of human aid or instrumentality. Neither a locomotive, a trolley car nor an automobile is dangerous per se —by or through itself—in that neither can inflict injury to a person except by its use or operation. A locomotive in the roundhouse, a trolley car in the barn, an automobile in a garage are almost as harmless as canary birds; but in operation they are dangerous instrumentalities, and the master who intrusts them to another to operate—the one on its right-of-way, the others on the public highways— cannot exonerate himself from liability for injury caused to others by the negligence of those to whom they are entrusted. As said in Barmore v. Vicksburg S. & P. R. Co., supra [85 Miss. 426, 38 So. 210]:
“ ‘The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and if that care and attention be about the management and custody of dangerous appliances, the master can*808not shift the responsibility connected with the custody of such instruments to the servant to whom they have been entrusted, and escape liability therefor. This rule arises from the absolute duty which is owing to the public by those who employ in their business dangerous agencies or appliances, engines, or instruments liable, if negligently managed, to result in great damage to others.’ ”12
Many states have by statute applied the dangerous instrumentality doctrine to owners who entrust the operation of automobiles to others. The California vehicle code, § 402(a), is illustrative:
“Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.”13
*809Like Jones v. Hoge, supra, the law relied upon by the court is all judge made. The court should not hesitate to correct judicial mistakes by passing the burden to the legislative branch of the government.14 In two conspicuous recent examples, the court courageously exercised its judicial responsibility. Pierce v. Yakima Valley Memorial Hospital Ass’n, 43 Wn. (2d) 162, 260 P. (2d) 765; Grein v. LaPoma, 54 Wn. (2d) 844, 340 P. (2d) 766.15
That uncompensated victims of automobile traffic accidents have created an unsolved national problem is demonstrated by the Columbia study of compensation for automobile accidents (1932). Some progress has been made by legislation but the problem remains unsolved. See 59 Col. L. Rev., James, The Columbia Study of Compensation for Automobile Accidents: An Unanswered Challenge (1959), 408.16 Judicial responsibility should not be evaded.
The circumstances before us very clearly demonstrate the necessity of public protection. The driver, Wernegreen, had recently graduated from an educational institution and desired to return to his home in Portland, Oregon, from Chicago. Like most students, his finances were meager so he eagerly embraced the opportunity to drive the respon*810dent’s car from Chicago to Seattle. The respondent, a used-car dealer in Seattle, bought the automobile in Chicago for anticipated profit in the course of his business, and entrusted a commercial agency to procure a driver to deliver it to his Seattle place of business. The predeparture directions for the two-thousand-mile journey from Chicago to Seattle were evanescent at best, and deviation therefrom was, indeed, foreseeable. Public policy forbids that, under such circumstances, an owner should be immunized from liability to innocent third parties.
When the owner entrusts the operation of his vehicle to others, his responsibility therefor should be that of the owner of a dangerous instrumentality. The incidence of public danger is the same whether the driver is a borrower or one whose activities are within the scope of the conventional master and servant relationship. These relationships should have significance only in determining the rights and liabilities as between the owner and driver and have no place in determining the owner’s duty to the public.
The practices leading to the disaster presently before us are not inherently wrong, but the owner resorting to them owes the public the duty of protection.
I would reverse the judgment.
Finley, J., concurs with Foster, J.
Hunter, J. (dissenting)—I concur in the result of the dissent.
“. . . Life rebels against all efforts at legal over-simplification. . . . To do justice, to make any legal system acceptable to society, the abstract preestablished rules have to be adapted and adjusted, the static formulas made alive. . . . ” Frank, Law and the Modern Mind (1949 ed.), 118, 120.
See, also, Corry, Law and Policy (1959), chapter 1, p. 3, at p. 11.
The holding in Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, and other cases of that time similarly holding, was criticized even in that era of limited automobile use. See the enlightened viewpoint in Annotation, L. R. A. 1915D, 691.
The failure to apply the dangerous instrumentality theory to the automobile has been often criticized. See 2 Harper and James, The Law of Torts, 1393, 1394, § 26.10, where the following statement is made:
“So far as use of the instrumentality on a frolic, off the job, is concerned, the usefulness of the rule has been curtailed by denying its application to the one instrumentality that really matters much—-the automobile. ...”
Accord: 81 U. Pa. L. Rev. 60; 17 Cornell L. Q. 305.
Cf. Weil v. Kreutzer, 134 Ky. 563, 121 S. W. 471 (1909), wherein it is said:
“. . . An automobile is nearly as deadly as, and much more dangerous than, a street car or even a railroad car. These are propelled along fixed rails, and all that the traveling public has to do to be safe is to keep off the tracks; but the automobile, with nearly as great weight and more rapidity, can be turned as easily as can an individual, and for this reason is far more dangerous to the traveling public than either the street car or the railway train. ...”
In marked contrast, in 1957, the motor vehicle death toll in Chicago was 318, far exceeding the number killed in railroad or wagon accidents, or both combined.
Cf. Allen v. Schultz, 107 Wash. 393, 181 Pac. 916, 6 A. L. R. 676, decided the following year, wherein the court, in a different context, stated:
“ . . . One who operates on the streets of a city such a dangerous instrumentality as an automobile is bound to take notice that he may be called upon to make emergency stops, and it is negligence on his part not to keep the automobile in such condition that such stops are possible.”
“No person, driver or operator in charge of any automobile or motor vehicle on any public road, highway, park or parkway, street or avenue within the state shall drive, operate, move, or permit the same to be driven, operated or moved at a rate of speed faster than one (1) mile in five (5) minutes with in [within] the thickly settled or business portion of any city or village within this state, nor outside of such thickly settled or business portion of any city or village on any public road, highway, park or parkway, street or avenue, at a rate of speed faster than one (1) mile in two and one-half (2%) minutes; nor over any crossing or cross-walk within the limits of any city or village, at a rate faster than one mile in fifteen (15) minutes when any person is upon the same.” 2 Remington & Ballinger 810, § 5571.
Some 2,825,000 people suffered nonfatal injuries in motor vehicle accidents in 1958. One out of every sixty-one Americans was killed or injured on the highways in that year.
Accident Facts (1958 ed.), published by the National Safety Council; Green, Traffic Victims: Tort Law & Insurance (1958) 63, 85, chapter 3; 34 Cal. State Bar Jour. 393; 11 U. Fla. L. Rev. 175, 176; 36 Jour. Crim. Law & Criminology 349; 287 The Annals 13 (1953); 116 The Annals 174 (1924); Annual Statistical Report of Motor Vehicle Traffic Accidents, Wash. State Patrol (1958). The last cited report shows that in the state of Washington in 1958, 573 people were killed on the highways, 28,289 were injured, and the economic loss attributable to the 73,350 reported accidents amounted to $68,449,180. It might also be noted that the Washington statistics are prepared in compliance with a legislative commandment, RCW 46.52.060.
Justice Holmes’ statement is similarly applicable:
“ . . . history is the means by which we measure the power which the past has had to govern the present in spite of ourselves, so to speak, by imposing traditions which no longer meet their original end. History sets us free and enables us to make up our minds dispassionately whether the survival which we are enforcing answers any new purpose when it has ceased to answer the old. . . . ” Holmes, Collected Legal Papers, Law in Science and Science in Law, 210, 225.
. . . Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.” MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696.
This decision has been approved and since followed in Florida. See, for example, Lynch v. Walker, 159 Fla. 188, 31 So. 268; D’Allessandro v. Bechtol, 104 F. (2d) 845, cert. den. 308 U. S. 619, 84 L. Ed. 517, 60 S. Ct. 295. See, also, the discussions in 5 Minn. L. Rev. 322; 11 U. Fla. L. Rev. 135; 5 U. Fla. L. Rev. 412.
Another decision adopting this viewpoint is Ingraham v. Stockamore, 63 Misc. 114, 118 N. Y. S. 399. See, also, Reese v. Buhle, 16 Ill. App. (2d) 13, 147 N. E. (2d) 431; and the concurrence of Rossman, J., in McDowell v. Hurner, 142 Ore. 611, 617, 629, 20 P. (2d) 395, 88 A. L. R. 578. Schweinhaut v. Flaherty, 49 F. (2d) 533, held the dangerous instrumentality doctrine applicable to taxicabs, but did not extend the doctrine to cover private motor vehicles. The illogic of so limiting the holding was pointed out in 17 Cornell L. Q. 305, and in the dissenting opinion of Judge Hitz in Simon v. City Cab, 78 F. (2d) 506, 509.
In Seleine v. Wisner, 200 Iowa 1389, 206 N. W. 130, the court upheld the constitutionality of a statute imposing liability on a car owner where a person driving with his permission negligently injures another, basing the decision on its recognition of the automobile’s dangerous character. The Massachusetts supreme court, in Opinion of the Justices, 251 Mass. 569, 147 N. E. 681, recognized the dangerous character of the automobile in advising the state legislature that a pending financial responsibility act was constitutional.
“Several states have enacted legislation having the same or a similar effect: Cal. Veh. Code Ann. § 402 (Deering 1948); D. C. Code § 40-403 (1940); . . . Iowa Code § 321.493 (1946); Mich. Stat. Ann., § 9.2101 (Rev. 1952). . . . ” 5 U. Fla. L. Rev. 412, 413, note 6.
See, also Minn. Stat. Ann., § 170.54 (1945); 5 R. I. Gen. Laws 924, § 31-31-3; N. Y. Vehicle & Traffic Law, § 59.
. . . that two generations ought never to have suffered from the baleful judgments of Abinger and Shaw.” Stertz v. Industrial Ins. Comm., 91 Wash. 588, 158 Pac. 256.
See, also, “Stare Decisis” by Justice William O. Douglas, 49 Col. L. Rev. 735, 747.
“See 11 Syracuse L. Rev. 119; 33 So. Cal. L. Rev. 104.
“James and Law, Compensation for Auto Accident Victims: A Story of Too Little and Too Late, 26 Conn. Bar Jour. 70; Green, Traffic Victims: Tort Law & Insurance (1958); Ehrenzweig, “Full Aid” Insurance for the Traffic Victim (1954); A symposium of articles in 15 Ohio St. L. Jour. 101-185; 66 Harv. L. Rev. 1300; 47 Georgetown L. Jour. 700; 19 Brooklyn L. Rev. 11; 44 American Bar Ass’n Jour. 354; 42 American Bar Ass’n Jour. 421; 2 Harper and James, The Law of Torts, chapter 11, p. 729, and chapter 13, p. 759; 287 The Annals 83; 25 State Government 266 (December, 1952); Association of the Bar of the City of New York, Report on Problems Created by Financially Irresponsible Motorists (1952); Unsatisfied Claim and Judgment Fund Law, Maryland Ann. Code (1957), Art. 66½, §§ 150-179, which attempt to deal with the problem; Allied American Mut. Fire Ins. Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 150 A. (2d) 421.