(dissenting).
I dissent.
A guest does not control the automobile in which he is riding, hence the failure of the host driver to comply with a request of the guest that the host slacken the speed does not show willfulness or wantonness on the part of the driver, nor is it any proof, in itself, of negligence. A protest of a guest may be dictated by a nervous condition of the guest, a human frailty of desire to interfere, or even from an unconscious assumption of authority. This court so said in Anderson v. Anderson, 69 N.D. 229, 285 N.W. 294 (1939), in which the decision rendered established a principle of law that has continued to be the law of this state until this date. Paragraph number 1 of the syllabus in that case states:
“Failure of a driver of an automobile to slacken speed because of protest by a guest is no evidence of negligence or wantonness on the part of the driver, and in an action brought by the guest, based solely on the alleged gross negli*538gence of the driver, the driver was entitled to an instruction to this effect.”
Subsequent to the decision in Anderson the Legislature has refused, on several occasions, to adopt bills which would repeal or modify North Dakota’s guest law. The last attempt was made in the 1971 session of the Legislature by the introduction of Senate Bill No. 2225. This Bill passed the Senate but was indefinitely postponed by the House. The annotation contained in the North Dakota Century Code, a set of which is in the possession of each member of our Legislature, carries the annotation of Anderson v. Anderson, supra, as follows:
“Failure of a driver to slacken speed because of a protest by a guest is no evidence of negligence or wantonness on the part of the driver.”
Certainly we cannot assume, under the circumstances, that our legislators were not aware of the Anderson holding on this point. This holding has been the law of this state for over thirty years, during which time it has been considered by our Legislature at several sessions. As late as this very year it was again considered and the policy adopted with respect to liability for injury or death of a guest was reaffirmed by the Legislature, and now, only six months later, is reversed by the majority of this court. I cannot agree that this is a proper course of action for this court to take. Without reversing the principle of law so clearly set forth in Anderson, the judgments entered in these two actions cannot be affirmed.
It is true that the rule is well-established that questions of negligence and proximate cause are questions of fact for the jury in a personal injury action unless the evidence is such that reasonable men can draw but one conclusion therefrom, in which event such questions become questions of law for the court. In respect to this statement I agree with the citations contained in the majority opinion. In addition, I cite in support thereof Willard v. Owens, 164 N.W.2d 910 (N.D.1969); Koland v. Johnson, 163 N.W.2d 330 (N.D.1968); Glatt v. Feist, 156 N.W.2d 819 (N.D.1968); Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967).
It is only when the evidence is without material conflict and is such that reasonable men must draw the same conclusion therefrom that the question becomes one of law for the court. Moe v. Kettwig, 68 N.W.2d 853 (N.D.1955).
In these cases the record establishes that there is no conflict in the evidence. The only eyewitnesses to the accident were the occupants of the automobile. Two of them are dead. The other two are the plaintiffs in these two cases. These plaintiffs, Mr. and Mrs. Kunze, were permitted to testify as to events and conversations, over defense objections claimed as error on these appeals. The majority have held that this evidence is admissible, on the thin thread that the parties commenced separate actions against the defendants which were consolidated for the purposes of trial and tried as one action. Thus each party testified but once during the trial and the testimony of each was on his own behalf as a party as well as a corroborating witness for the other. The actions involved the common question of law and fact. The issue on the question of liability was identical in each case. Both parties, in their respective action, relied on the same transaction and statements to sustain the burden of proof which each had to recover in the tort action. Both parties relied upon the same claimed tort to seek recovery for their respective injuries. Each of the parties, through their respective action, testified as to the transaction and the statements made by the deceased. In my opinion, Section 31-01-03, N.D.C.C., was violated in these cases as each party was permitted to testify in his own action against the defendants, who were the legal representatives of the deceased, the alleged tort feasors. It is my opinion that to have allowed this testimony flies directly in the face of the statute. I feel confident that the jury did not understand the fine distinction pointed out by the majority in their opinion that “the parties in one of the lawsuits are competent to testify for the parties in the other lawsuit” and, in *539fact, were so doing when they testified as to the transaction and statements. Further, the intent and the clear wording of the statutes, in my opinion, have been abrogated in situations where two people are injured as a result of a single transaction and bring separate lawsuits against legal representatives of the alleged tort feasors.
As I stated previously, there is no conflict in the evidence and, considering all of the evidence, including testimony by each of the parties to the transaction and statements, it is still not sufficient, as a matter of law, to sustain the verdicts. The whole record establishes that the accident occurred on a clear day. The highway was dry and in good driving condition. The automobile was in good mechanical condition. Brenda Gruebele, although operating the automobile at a high speed, drove it on the proper side of the highway and in a regular manner. There is no explanation in the record of the reason why the automobile left the highway. Pictures introduced in evidence of the tracks made by the automobile, taken at the direction of the sheriff who investigated the accident and one taken by a newspaper reporter, disclose that the testimony given by Mr. and Mrs. Kunze with respect to the highway and the leaving of the highway by the automobile was truthful. It appears that the highway is flat and straight where the tragedy occurred. There were no obstructions. The movement of the automobile from the highway onto the shoulder and then into the ditch was gradual. The automobile proceeded for some distance with the right wheels on the shoulder of the highway, then gradually went into the ditch. Marlin Kunze testified that the only movement which he felt that was not normal to that of a moving automobile upon a hard-surfaced highway was a “lunge” or “lurch” which occurred as the automobile left the highway and went into the ditch. Both of the plaintiffs testified that they did not know what caused the automobile to leave the highway. There was no claim of intentional or wanton misconduct made by the witnesses. In their arguments the Kunzes acknowledge that this court has held that failure to keep a proper lookout or excessive speed do not, of themselves, constitute gross negligence. They argue that this position must be qualified as has been done in some other jurisdictions. They have cited in support of their arguments the annotation contained in 6 A.L.R. 3d 769, with emphasis on Section 4 [c] at 787. They have succeeded in convincing the majority of the soundness of their argument. The majority state:
“We adopt this reasoning and, to the extent that this view contradicts previous holdings of this court, such holdings are overruled. See Anderson v. Anderson, 69 N.D. 229, 285 N.W. 294 (1939).”
In view of the historical background in this state, set forth earlier in this dissent, I feel that the majority have gone too far, too fast.
The cases cited in support of the A.L.R. annotation, in which warnings or remonstrations of a guest as to the excessiveness of the speed were stressed by the court as a factor, were attendant upon other circumstances indicating an intention to injure or a wanton disregard for the safety of the guest, or actual or constructive notice that serious injury to the guest would probably result because of the excessiveness of speed. Such circumstances involve speeding while intoxicated, speeding without paying attention or with the eyes off the road, failing to stop or slow down at crossings or intersections, speeding on a curve, hill or grade, speeding along slippery, rough or bumpy roads, speeding with a defective automobile, or speeding when vision is obscured by fog, rain, dust, snow or blinding lights. In all those cases speed and the warnings were accompanied by some dangerous circumstance, indicating an intention to injure or a wanton disregard for the safety of the guest, or actual or constructive notice that serious injury to the guest would probably result because of the excessiveness of the speed with which the automobile was being driven. The facts in the cases on which this portion of the A.L.R. annotation rely do not comport *540with the circumstances in the cases before us, nor are they authority, in my opinion, for overruling Anderson v. Anderson, supra.
The plaintiffs have alleged that their injuries were sustained as a result of the gross negligence of Brenda Gruebele. They have the burden of establishing, by a fair preponderance of the evidence, that their injuries were proximately caused as alleged. Holcomb v. Striebel, 133 N.W.2d 435 (N.D.1965). Gross negligence, within the automobile guest statute, is no c^re at all or omission of the care which even the most inattentive and thoughtless seldom fail to make their own concern, evincing a reckless temperament and lack of care which is practically willful in its nature. The term “gross,” as applied to the negligence of a motorist in an action brought by an automobile guest, has reference to the mental attitude of the motorist in regard to the consequences which he should have foreseen, and implies such gross recklessness as shows indifference to the consequences. Holcomb v. Striebel, supra; Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873 (1936).
The trial court instructed the jury on the question as follows:
“I charge you that gross negligence within our automobile guest statute is no care at all, or the omission of care which even the most inattentive or thoughtless seldom fail to make for their own concern, evincing a reckless temperament and lack of all care, which is practically wilful in its nature and shows an indifference to the consequences of a negligent act.
“Gross negligence is a relative term and whether or not the certain act or omission to act constitutes gross negligence depends upon all of the facts and circumstances of each case.
“The court instructs you, however, that the mere failure of a driver to keep a proper lookout, or excessive speed, do not of themselves constitute gross negligence. To constitute gross negligence, the plaintiffs must prove that Brenda Gruebele drove the car in question in a manner evincing a reckless temperament and an indifference to the probable consequences of her negligent act.”
The instructions given are not alleged to be erroneous and conform to what this court has repeatedly said in guest cases on the issue of gross negligence. Holcomb v. Striebel, supra; Norgart v. Hoselton, 77 N.D. 1, 39 N.W.2d 427 (1949); Anderson v. Anderson, supra; Schwager v. Anderson, 63 N.D. 579, 249 N.W. 305 (1933).
Inadvertence is not gross negligence. Norgart v. Hoselton, supra.
The instructions given to the jury and the law as established in this state are that the evidence, in addition to proving negligence, must also prove that Brenda Gruebele drove the automobile “in a manner evincing a reckless temperament and an indifference to the probable consequences of her negligent act” and “which is practically wilful in its nature.”
Additional evidence in the record consists of testimony by the sheriff that the speed limit on the highway where this tragedy occurred is sixty-five miles per hour. Thus evidence that the car was traveling at eighty-five miles per hour is evidence of negligence and, on the basis of the proof of speed, the jury could find that Brenda Gruebele was negligent and that her negligence was the proximate cause of the tragedy which occurred. However, these findings will not support the verdicts in these cases as liability may not be predicated upon ordinary negligence. There is no evidence to support a finding that the negligence was superinduced by the intoxicated condition of Brenda Gruebele and thus bring these cases within the law as established in Borstad v. La Roque, 98 N.W.2d 16 (N.D.1959); nor is there any evidence that Brenda Gruebele voluntarily or deliberately directed her attention elsewhere than to the highway upon which she was driving to bring her within Grenz v. Werre, 129 N.W.2d 681 (N.D.1964), or Sheets v. Pendergrast, 106 N.W.2d 1 (N.D.1960), or Rubbelke v. Jacobsen, 66 N.D. 720, 268 N.W. 675 (1936); nor is there evidence to support our decision in Bolton v. Wells, 58 N.D. 286, 225 N.W. 791 *541(1929), in which case the driver of the automobile was exceeding the speed limit while driving over icy roads and, while so engaged, took his gaze from the road and at the time of this momentary withdrawal of attention the car swerved, skidded and upset causing injury to his guest.
I have examined the evidence carefully and, while it shows that the automobile was being driven at a high rate of speed and went into the ditch where it continued until it struck a crossroad, it is not shown how the accident took place or what caused it. Neither is there any showing made which would indicate the mental attitude of Brenda Gruebele while she was driving the automobile. In fact, the testimony of Mr. and Mrs. Kunze, who were the guests and the only surviving eyewitnesses, was to the effect that Brenda Gruebele was driving properly in all respects, except as to speed. The plaintiffs were sitting in the back seat. They testified that they observed the speedometer before the automobile entered a gradual curve some two-tenths of a mile long, and just before or at the time the automobile entered the curve the plaintiff, Marlin Kunze, testified that he said, “Brenda, slow down, I want to eat the hamburger tonight, I don’t want to die.” Roberta Kunze testified that she heard this statement made by her husband and that Leon Stang answered: “Oh, hell, this car is good for ninety.” The plaintiff, Marlin Kunze, however, does not remember this statement being made by Leon Stang and, therefore, if he was called as a witness in his wife’s separate action against these defendants he could not have testified to the answer which his wife testified was made by Leon Stang to his statement. Thus, in view of the ruling of the majority, the plaintiff, Mrs. Stang, testified as a party in her action to a statement made by the deceased which could not have been admitted in her case if it were tried separately. It appears from the testimony that the automobile continued through the curve at approximately the same speed. It negotiated the curve successfully on its own side of the highway and proceeded for some 700 to 800 feet on the straightaway, all on its proper side of the highway. Then it went gradually into the right-hand ditch. It proceeded in the ditch until it struck the crossroad, which it passed over, and came to rest on the opposite side. The distance from the point where the automobile left the highway to where it hit the crossroad, according to the testimony of the sheriff, was 560 feet. There is no conflict in the evidence but, on the basis of this evidence, the majority have opined that the evidence “could suggest that Brenda Grue-bele willfully and deliberately directed her attention elsewhere.”
The majority allude to two physical circumstances : first, that before the automobile left the highway the highway makes a gradual curve and, second, the fact that the car traveled unexplainably off the road and traveled a distance of 560 feet in the ditch without any “apparent” attempt being made to avoid striking the crossroad. They conclude that this sequence of events reveals to them other factors which “could suggest” that Brenda Gruebele willfully and deliberately directed her attention elsewhere than to her driving and, secondly, that “it could have indicated to the jury” it was too dark for her to see the approach in time to turn to avoid it. This is introducing speculation into the case and suggesting that the jury may have speculated and that, if it did, it has received the majority’s blessing. Certainly there is no evidence to sustain these conclusions. Further, there is no claim made on the part of these plaintiffs that Brenda Gruebele, as driver of the car, willfully and deliberately directed her attention elsewhere, or that it was too dark to see the crossroad. The testimony is to the effect that the exact time of the occurrence of the accident is not known and that it was “approaching dusk.” Neither party remembers whether the lights were on but both parties remember discussing the cleanliness and orderliness of a farmstead which they passed at the curve. Mrs. Kunze also remembers seeing a sign along the highway which read “Trash Can” and Mr. Kunze testified that *542he remembered seeing a “lot of grass flying around” as the car was traveling in the ditch. There is no claim that it was dark, nor is there any evidence in this record from which the jury could conclude that it was too dark to see the crossroad, or that Brenda Gruebele willfully and deliberately directed her attention elsewhere than to her driving. It would be just as reasonable to speculate that she had a heart attack, or that she blacked out. Neither juries nor this court are permitted to speculate as to facts from which to draw conclusions.
Considering the evidence in the light most favorable to the verdicts, I find nothing more than a case of ordinary negligence on the part of the driver of the automobile. The facts disclose a typical case of negligence, with failure to exercise the care of a reasonably prudent person, for which there can be no recovery in an action by a guest against his host. There is, in my opinion, no justification for the verdicts of the jury on the basis of the record made in this case.
“When negligence is shown and the issue centers on whether the degree is what is known as ordinary negligence or gross negligence, the burden of proof is upon the one who asserts gross negligence to show that the acts complained of are of that degree.” Jacobs v. Nelson, supra.
Presumptions, guesses or assumptions will not suffice; neither will the doctrine of res ipsa loquitur aid the plaintiffs.
“Unlike the case in which it is only necessary to establish ordinary negligence, all cases seem to agree that the doctrine of res ipsa loquitur is not available where it is necessary, as in the case of an action under a guest statute, to show that the defendant was guilty of gross negligence, or wilful and wanton misconduct. For example, it has been held that the doctrine of res ipsa loquitur is not available to establish gross negligence or wilful or wanton misconduct, as required under a guest statute, where the motor vehicle leaves the roadway or turns over and thereby causes injury or death to a guest.” 8 Am.Jur.2d, Automobiles and Highway Traffic, Sec. 920.
I find, upon the record made in these two cases, that reasonable men, acting fairly and impartially, could arrive at but one conclusion, that is, that the injuries sustained by the plaintiffs, Mr. and Mrs. Kunze, were not caused by gross negligence on the part of Brenda Gruebele and that, therefore, as a matter of law, the defendant-appellant in these cases was entitled to a judgment for dismissal of the actions notwithstanding the verdicts.
Addendum to Dissent
Following the release of the original majority opinion and my dissent a petition for rehearing has been filed. The majority have now denied the petition for rehearing and have substituted several pages of their original opinion, in which pages they have substituted several phrases alluded to in my dissent, with other words, however, without change in meaning. They have also quoted at some length from Grenz v. Werre, supra, and have attempted to justify their decision in this case on the insufficiency of the evidence in that case. They state that they have reread the transcript of the evidence in Grenz and have concluded that the finding that the driver willfully and deliberately directed his attention elsewhere than to the road must have been inferred from the physical facts and the circumstances. The difference in the two cases lies in the fact that the driver of the car in Grenz testified, at the trial, that he did not see the car with which he collided until just seconds before the collision occurred and that he did not know where or how the collision occurred. There is no comparable evidence in this case upon which to base the inference.
STRUTZ, C. J., concurs.