(dissenting in part) — I agree with the majority that there must be a new trial because the trial court erroneously dismissed the case.
It is evident from the memorandum opinion that the trial court considered the defendant’s exercise of care with regard to the vehicles behind her determinative of the issue of gross negligence. Of course, this accident was not caused by the defendant’s failure to exercise care with regard to a vehicle passing her, but rather by her failure to yield the right of way to an approaching vehicle. Her testimony was that she observed the approaching truck in the distance. She could not estimate its speed, but assumed that she had plenty of time to make the turn.
Tending to refute an implication that the truck was traveling at an excessive speed was the fact that it stopped in a very short distance after the collision. I do not think it can be said as a matter of law that the defendant exercised some (slight) care in making the turn or none at all. The jury might well find that the defendant, being aware that a truck was approaching and that time had elapsed since she had noted its position, was guilty of gross negligence in attempting to execute a turn without looking again to ascertain its position — in other words, that she failed to exercise even slight care.
*334However, I dissent to that portion of the majority opinion which attempts to “clarify” the definition of gross negligence. To my mind, the term was defined in clear and understandable language in Crowley v. Barto, 59 Wn.2d 280, 367 P.2d 828. There we said that when the legislature, in 1957, amended Laws of 1937, ch. 189, § 152, the host-guest statute, to provide for liability where the host is guilty of gross negligence, it meant to accord to the term the same meaning as the court had given it prior to the enactment of the first host-guest statute in 1933. That meaning was “the want or absence of slight care.”
Incidentally, in passing, I do not find in my research any indication that the court originally adopted the rule that a host is liable to his nonpaying passenger only when he is guilty of gross negligence by drawing an analogy to the law of bailments. The cases cited by the majority for this proposition do not support it; and a reading of the early case of Heiman v. Kloizner, 139 Wash. 655, 247 Pac. 1034 discloses that the rule was adopted upon a much broader analogy. In that opinion, this court said:
Varying degrees of negligence, or varying degrees of required care, if one prefers to have the proposition so stated, touching the question of liability rested upon the ground of negligence, have been repeatedly recognized by us as a practicable working principle of the law of this state. [Citing cases.] We do not mean by this that varying degrees of negligence or required care have been or can be differentiated with any sort of precision. Only that differing situations, conditions and relations call for differing degrees of care.
Having then observed that one should not be required to exercise as high a degree of care in carrying an invited but nonpaying passenger as he should be required to exercise in carrying a passenger for hire, we chose a Massachusetts case, Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C 264, as embodying one of the most exhaustive examinations of the question to be found and quoted from it at length. A portion of that quotation is as follows:
“[J]ustice requires that to make out liability in case of a gratuitous undertaking the plaintiff ought to prove a *335materially greater degree of negligence than he has to prove where the defendant is to be paid for doing the same thing. It is a distinction which seventy-five years’ practice in this Commonwealth has shown is not too indefinite a one to be drawn by the judge and acted upon by the jury.”
While this court did not at that early stage adopt the definition of gross negligence as “absence of slight care,” it planted the seeds from which that definition later sprang. However, the language of the authorities quoted in that opinion could well have supported a different statement of the rule, namely, that the care required is reasonable care under the circumstances; and if I were the legislative body, that is the standard I would impose. But that is. not my function as a judge of the supreme court. It is to interpret and apply a legislative act.
This observation leads me back to the gist of my dissent. The conclusion I derive from a reading of the majority opinion is that, in their attempt to redefine gross negligence, the majority have expanded the area of liability beyond that intended by the legislature. We have said that the legislature intended to adopt the meaning previously ascribed to the term by this court, namely, the absence of slight care.
My Webster’s New Twentieth Century Dictionary, third edition, defines slight as “scanty, meager.” I conceive of slight care as an amount so small that any amount smaller would amount to no care at all. Yet the majority seem to recognize the possibility of a degree of care which is greater than none, but less than slight. If this degree is exercised, they say, it is not sufficient to deliver the actor from liability for gross negligence. A degree of care which is so small that it can fit between “slight” and “none” is imperceptible.
The majority says:
It [gross negligence] means, therefore, gross or great negligence, that is, negligence substantially and appreciably greater than ordinary negligence. Its correlative, failure to exercise slight care, means not the total absence of care but care substantially or appreciably less than the quantum of care inhering in ordinary negligence.
*336“The quantum of care inhering in ordinary negligence” is a concept unfamiliar to me, but I will assume that the meaning of this expression is the quantum of care, the failure to exercise which constitutes ordinary negligence.
While at first blush it would seem that the majority have conjured up a quantity of care which is less than slight, as the term is ordinarily understood, I think that the actual and practical effect of the opinion may be simply to enlarge the concept of “slight” or, in other words, to increase the quantity of care which may be termed “less than slight but more than none.” Thus, the point of differentiation between gross and ordinary negligence becomes blurred. For example, if a host exercises one-third the amount of care a person with ordinary prudence would exercise or one-half or maybe even two-thirds, the majority would say that the jury may in each case find that this amount was less than “slight” under the circumstances, and, therefore, the host was guilty of gross negligence.
The true import of the majority opinion seems to be that the jury should be allowed to determine whether the host exercised reasonable care under the circumstances. That may be a fine rule of law, but it is not the one adopted by the legislature.
The legislature has said that a host need not exercise much care for the safety of his nonpaying passenger. He may not deliberately harm him, or recklessly harm him; but if he is sober and exercises a very little bit of care, he cannot be held liable. It is not for this court to evaluate the wisdom of this legislative enactment or to revise it.
I do not think the concepts of “great negligence” and “serious negligence” are any more understandable than the concept of “gross negligence.” In fact, it seems to me that both those terms are less precise than “gross.” If gross negligence, a term which in itself should convey a fairly clear meaning to the average mind, is further defined as “the absence of slight care,” I think a jury should not have any difficulty in understanding it. It means simply that, where the situation called for the exercise of care, none was exercised. Not that a deliberate wrong was done, or that *337the actor moved with “reckless disregard of the consequences” into a dangerous situation [We said in Crowley v. Barto, supra, that this involved a certain willfulness.], but that he failed, through inattention or indifference, to do any act which care would have required under the circumstances.
I fear that the majority opinion injects new elements of vagueness and uncertainty into the concept and may result in greater confusion among judges, lawyers and juries. I would forego the temptation to “clarify” the definition and leave well enough alone.
Donworth, J., concurs with Rosellini, C. J.