(dissenting).
I dissent: I agree with Chief Justice -Henriod that we should follow the California holding of Prager v. Isreal1 that where the parties, after riding in the car as owner and guest for sometime, parked on a wide portion of the street and got into the back seat and ate lunch together and thereafter plaintiff started to get out of the car to resume her former position in the front seat and the defendant alighted from ■the car to resume his driver’s position, then, while plaintiff had one foot on the ground and the other on the running board the car started forward and she sustained injuries, that the plaintiff in that case did not come under its guest statute, which is verbatim to our guest statute, because the driver was not behind the steering wheel and she was in the act of alighting from the car and not riding therein within the meaning of the guest statute.
Here the court granted a summary judgment as a matter of law and without find*114ing of facts on the grounds: (a) that the .plaintiff was not a guest, and (b) that the defendant was negligent. It held that the case should be tried on the question of damages only. This ruling was correct only if the plaintiff’s showing required a finding as a matter of law that under the Práger case, with which I agree, plaintiff was not a guest and that the jury here could reasonably find the facts to be such as would require a holding as a matter of law that in this case plaintiff was not a guest.2 I think there is no doubt whatever that the evidence conclusively shows that defendant was guilty of negligence which caused the accident.
Here in my opinion the court should have submitted to the jury the question of whether the car after returning from a guest ride did stop on the sandy, muddy side of the road at plaintiff’s home where the parties intended to terminate the guest ride, and thereafter the parties talked together about other matters for about five minutes or more and thereafter defendant got out of the car to help plaintiff out and then while plaintiff had one foot on the ground and the other foot in the car started thereby causing plaintiff’s injuries. In my opinion if the jury found these .question of fact in the affirmative it would clearly require a holding that under the Prager case decision the guest statute does not apply to this case and that such holding should be followed. For that reason I dissent.
. See Rule 56 U.R.C.P. and cases cited in annotation Frederick May & Company v. Dunn, 13 Utah 2d 40, 368 P.2d 266.
. 15 Cal.2d 89, 98 P.2d 729.