(dissenting).
I dissent from the majority opinion of this Court. The parties to this action are substantially in agreement as to the facts set forth in the case at bar. However, the findings of the majority of this Court greatly differ from the findings of the trial court, indicating that a shift in emphasis as to certain critical points in the sequence of factual events has given rise to the differing conclusion. A review of the facts is appropriate at this time in order to reach a clearer understanding of this case.
A statement of the facts of the accident, which occurred at about 10:45 a. m. on January 20, 1968, and in which all of the victims lost their lives, should be preceded by a recitation of the events leading up to the time of the accident, insofar as these events pertain to the victims. Mr. Orvin B. Lysne was the manager of the Devils Lake branch of the Great Plains Supply Company, a corporation, and Mr. Gordon Bjerke was also employed by this company. The testimony at the trial indicated that, on the day prior to the accident at about 6:45 p. m., Mr. Lysne proceeded to Pop’s Liquor Store in Devils Lake and remained there until the closing hour of 1:00 a. m., during which period Mr. Lysne consumed between ten to twelve alcoholic beverage drinks, in company with various persons whom he knew and visited with at Pop’s Liquor Store. Mr. Bjerke, during this period of time, had remained at the Great Plains Supply Company premises after closing hours, making some tables, pursuant to a private order. Mr. Bjerke, at about one o’clock in the morning of the day of the accident, joined a group of Great Plains’ employees at the Two Spot Cafe. Mr. Lysne was a member of such group. These people remained at the Two Spot Cafe until eight o’clock in the morning, during which time they consumed food, coffee, and some alcoholic beverages. There is no indication from the evidence that Mr. Bjerke consumed any alcoholic beverage during this period of time. Testimony was adduced indicating that Mr. Lysne did consume some alcoholic beverages during this period, and the testimony further revealed that at least some of the witnesses believed that Mr. Lysne showed slight effects from the alcohol he had consumed. Mr. Lysne and Mr. Bjerke left the Two Spot Cafe at about eight o’clock that morning and returned to the Great Plains Supply Company. After about twenty minutes, they left the company’s grounds in Mr. Lysne’s car, without informing anyone as to their destination. They drove to Mr. Bjerke’s home in Churchs Ferry, North Dakota, located approximately 21 miles west of Devils Lake on Highway No. 2. At the Bjerke home Mr. Lysne was introduced to Mr. Bjerke’s family and the two men drank copious amounts of coffee while there. Mrs. Bjerke testified that both men acted normally and revealed no signs of intoxication while they were at the Bjerke home; and that a telephone call was received at the Bjerke residence at about ten o’clock that morning from another employee of the Great Plains Supply Company, requesting Mr. Lysne’s return to Devils Lake. Mr. Lysne informed such employee that he would be returning to Devils Lake shortly. Mrs. Bjerke further testified that her husband asked to ride with Mr. Lysne so that he could return to Devils Lake for the purpose of delivering the tables which he had recently completed.
The Lysne vehicle, proceeding east on Highway No. 2, at a point approximately 1 ½ miles west of Devils Lake, collided head on with a vehicle driven by Mr. Heartso. As a result of this collision, Mr. Bjerke and Mr. Heartso were killed immediately, and Mr. Lysne survived only a few days, never regaining consciousness.
The traveled surface of the road at the point of impact was 25 feet wide and each shoulder was 8½ feet wide, making a total width of 42 feet. While it was a cold day, the sun was shining and visibility was *504good, except for a slight haze. The evidence is in conflict as to whether or not there was frost on the highway just prior to or at the time of the accident. Mrs. Bjerke’s contention that there was frost present on the highway is corroborated by several pictures of the accident scene taken by a professional photographer shortly after the accident occurred. Mr. Heartso’s administrators aver that there was a curve in the highway in the immediate vicinity at the point of impact, which curve probably impaired Mr. Heartso’s judgment concerning the location of the Lysne vehicle on the highway. The evidence indicates that while there was a curve, it commenced some distance west of the accident scene and that at the point where the accident happened the highway runs generally straight in an east-west direction, with unimpaired visibility for at least a quarter of a mile in either direction. The Heartso vehicle came to rest following the accident along the south edge of the highway; and the Lysne vehicle came to rest along the north edge of the highway. There was a continuous tire mark on the highway 198 feet in length, originating northwest of the accident scene and terminating at the point of impact. This mark indicates that the Lysne vehicle had been traveling east in the north lane of the highway — in the westbound lane — and Mr. Lysne had attempted to return his vehicle to the south, or eastbound, lane and his vehicle had partially crossed the center line of the highway at the time his car collided with the Heartso vehicle. The testimony of the expert witnesses and a perusal of the professional photographs which depict the location of the debris resulting from the accident corroborate the conclusion of the trial judge that the impact between the two vehicles took place near the center line of the highway, with each of the vehicles being in its wrong lane of traffic. The vehicles met virtually head on. However, there are no skid marks or tire marks on the highway surface leading up to the point of impact that would indicate the position of the Heartso vehicle on the highway as it was traveling west just prior to the collision.
In consideration of the issue of liability pertaining to Mr. Heartso, the majority opinion states that the law presumes a person to be innocent of any wrong, in that a person has obeyed the law and that a person has acted with proper care for his own concern; and that these presumptions are given an even greater consideration when a person is killed and there are no eyewitnesses. The majority then cites as authority § 31-11-03(1), (4), (32), N.D.C.C.; Smith v. Knutson, 76 N.D. 375, 36 N.W.2d 323 (1949); New York Life Ins. Co. v. Hansen, 71 N.D. 383, 2 N.W.2d 163 (1941); Hausken v. Coman, 66 N.D. 633, 268 N.W. 430 (1936); Fried v. Olsen, 22 N.D. 381, 133 N.W. 1041 (1911); Kunkel v. Minneapolis, St. P. & S. S. M. Ry. Co., 18 N.D. 367, 121 N.W. 830 (1909). However, it must be noted that while these presumptions are in effect, they are so only if they are uncontradicted. They are disputable presumptions and may be contradicted by other evidence. It is my position in the instant case that these presumptions as they pertain to Mr. Heartso have been successfully rebutted. Furthermore, this Court held, in Thompson v. Nettum, 163 N.W.2d 91, 93 (1968), that:
“In a negligence action where both parties suffer from retrograde amnesia, the presumptions of due care and obeying the law apply equally to both parties and the identical conflicting presumptions balance and cancel each other.” [¶[ 5 of the syllabus.]
Certainly the same presumptions applied to Mr. Lysne’s vehicle until subsequent evidence was admitted which rebutted these presumptions. Even if the presumptions set forth above had not been successfully rebutted, the presumptions would have canceled each other under the doctrine of Thompson v. Nettum, supra.
The majority opinion states that Mr. Heartso was faced with a classic case of *505sudden emergency. An examination of the physical facts and the evidence surrounding and pertaining to the accident simply does not support this conclusion. The testimony of expert witnesses who had investigated the scene of the accident indicate, and the photographs admitted into evidence clearly reveal, that the highway is straight at the point of impact and runs in a generally east-west direction; that to the west of the accident scene there is a curve — a gentle curve, at most — but it was at a sufficient distance so as not to distort the visual perception of a driver in Mr. Heartso’s position, approaching, as he was, the point of impact. Certainly if Mr. Heartso had been maintaining a proper lookout and the Lysne vehicle was on the wrong side of the road, Mr. Heartso would have had ample time and opportunity to have observed the Lysne vehicle and to have attempted evasive action. The ditch to Mr. Heartso’s north side was gently contoured and would not have been hazardous to traverse in the course of evading the oncoming Lysne vehicle. The lack of skid marks would indicate that Mr. Heartso did not apply his brakes. In addition, the cars collided squarely head on, as set forth in the majority opinion. Thus, if Mr. Heartso were confronted with a sudden emergency and had attempted to avoid the accident by swerving into Mr. Lysne’s eastbound lane, the cars would not have collided squarely head on. Just as the tire tracks show that prior to the impact the Lysne vehicle had been on the wrong side of the road, the tracks also show Mr. Lysne’s frantic but not quite successful attempt to return to the south, eastbound lane of the road. This, too, should have been observed by Mr. Heartso. Hypothetically, even if Mr. Heartso had been traveling within his proper lane and had made a sudden swerve, or if he had swerved radically, certainly he would have lost control of his car because of the frosty condition of the highway and this would have caused his vehicle to enter into a spin and at least the impact, if there had been an impact, would have been at a different angle. Likewise, if Mr. Heartso had been traveling in the proper lane and had turned his automobile slightly to his left, his car would not have been as far over the center line as the physical evidence at the point of impact indicates. In Spielman v. Weber, 118 N.W.2d 727, 728 (N.D.1962 [reh. den. 1963]), in paragraph 6 of the syllabus, this Court said:
“Motorist confronted with an emergency, not of his own making, who is required to make an instant decision, is not guilty of negligence if he fails to make the wisest choice. But where such emergency is caused in part by such motorist’s own acts, he cannot claim the benefit of the emergency rule.”
See also Tennyson v. Bandle, 181 N.W.2d 687 (N.D.1970); Degenstein v. Ehrman, 145 N.W.2d 493 (N.D.1966); Bellere v. Madsen, Fla., 114 So.2d 619, 80 A.L.R.2d 1. The trial judge found that Mr. Heartso was not maintaining a proper lookout where, on a clear day, the Lysne vehicle in the wrong lane should have been seen by Mr. Heartso for a sufficient period of time to have enabled Mr. Heartso to have taken evasive action. In addition, the physical evidence indicates that Mr. Heartso did not swerve suddenly into the eastbound lane, but in fact had been over the center line for some distance. Therefore, I uphold the finding the trial court made on this issue that the emergency doctrine does not apply to Mr. Heartso. Finally, it is my opinion that Mr. Heartso’s negligence was a proximate cause of the accident and that Mr. Heartso’s liability has been established.
Paragraph 17 of the trial court’s findings of fact states:
“That Orvin B. Lysne, at the time and place of the accident, was guilty of gross negligence for the reason that he drove his vehicle in the wrong lane of traffic, failed to have his vehicle under control, and failed to maintain a proper look-out prior to the time that the accident occurred, and drove his vehicle at an excessive rate of speed considering the cir*506cumstances existing at the time and place of the accident; ”
There is considerable evidence concerning Mr. Lysne’s use of alcoholic beverages over a period of approximately 24 hours prior to the accident. However, neither the pleadings nor the trial court’s findings of fact set forth or refer to this evidence. Nevertheless it can be assumed that the trial judge in making his findings of fact did consider all of the evidence presented at the trial. § 31-11-03(15), N.D.C.C. The majority opinion frequently refers to the use of alcoholic beverages by Mr. Lysne. However, it does not consider alcoholic beverages as an issue in the case at bar. Rule 15(b) of the North Dakota Rules of Civil Procedure states:
"Amendments to conform to the evidence.
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
See Helgeson v. Locken, 130 N.W.2d 573 (N.D.1964); Kucera v. Kucera, 117 N.W.2d 810 (N.D.1962); Underwriters Salvage Co. v. Davis & Shaw Furniture Co., 198 F.2d 450 (U.S.Ct.App. 10th Cir. 1952). In addition, the issue of alcoholic beverages will be considered by this Court on trial anew, as we held in Steffen v. Boyle, 115 N.W.2d 8, 9 (N.D.1962), in paragraph 1 of the syllabus:
“Where an issue not raised by the complaint is tried, without objection, failure to amend the complaint does not affect the results of the trial, and the issue will be considered by this court in a trial de novo.”
The majority has cited Holcomb v. Striebel, 133 N.W.2d 435 (N.D.1965), wherein the term “gross” as applied to the negligence of a motorist in an action under the guest statute 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. I agree that gross negligence infers mental attitude. However, in reality, mental attitude is not a subjective matter but is an objective matter, to be determined by overt acts of the negligent party.
The majority opinion states :
“Even if it was because he was intoxicated, it does not follow that it was gross negligence. It could as well have been ordinary negligence superinduced by intoxication.”,
and cites Borstad v. LaRoque, 98 N.W.2d 16 (N.D.1959). Ordinary negligence su-perinduced by intoxication produces the same result as gross negligence and removes the protection of the guest statute as it applies to the host driver, under Borstad v. LaRoque, supra. Paragraph 2 of the syllabus of Borstad, supra, 98 N.W.2d at 18, states:
“Injury to or death of a guest proximately results from the intoxication of the owner, driver, or person responsible for the operation of a vehicle under the ‘guest statute’, when the ordinary negligence of the host is a proximate cause *507of the mishap and such negligence is su-perinduced by his intoxicated condition.”
This Court held in Borstad, supra, 98 N.W.2d at 24, as follows:
“In the light of the foregoing definitions which we approve, we hold that liability of the host under the ‘guest statute’ is established when, by reason of intoxication, a host’s normal mental and physical faculties for the safe and prudent operation of the motor vehicle are appreciably impaired and ordinary negligence of the host is thereby induced which proximately causes the mishap out of which the guest’s injuries and damages arise.”
The facts in this case bring it within the doctrine enunciated by Borstad v. LaRoque, supra. I do not believe that Borstad v. LaRoque, supra, should be inferentially overruled and, if this Court is going to overrule Borstad, it should so state.
The next issue is whether Mr. Bjerke assumed the risk in riding in an automobile driven by Mr. Lysne. In Borstad v. LaRoque, supra, 98 N.W.2d at 25, this Court said:
“As applied to the defense raised by the host driver in an action by his guest passenger where liability of the host arises in tort, the guest will be deemed . to have ‘assumed the risk’ of injury arising from the mishap when (1) the guest has knowledge of a situation that is dangerous beyond that normally inherent in the operation of a vehicle whether caused by the obvious incompetence of the driver or by the dangerous condition of the vehicle, or otherwise, (2) an appreciation of the danger and a voluntary choice to encounter it, and (3) an injury proximately caused by the danger presented. This defense is not available if wrongful conduct of third persons was a proximate cause of the mishap, unless such conduct, like any other contributory cause, could reasonably have been anticipated by the plaintiff at the time the risk was assumed and thus served to compose the danger.”
Thus I conclude that this question would not apply specifically to the liability of Mr. Heartso since Mr. Bjerke could not have anticipated Mr. Heartso’s negligence, nor was Mr. Bjerke a party to it. However, it is necessary to determine whether Mr. Bj erke assumed the risk when he rode with Mr. Lysne. Where the guest has knowledge of substantial drinking of alcoholic beverages by the driver and there is evidence tending to show that such drinking was a contributing cause of the driver’s negligence, the guest is not barred as a matter of law except where his knowledge of the physical incapacity of the driver and the surrounding circumstances are such that reasonable men could draw but one inference as to his negligence. Thus, this question is one for the jury or, as in the case at bar, for the trier of facts. See Sahli v. Fuehrer, 127 N.W.2d 900 (N.D.1964). The record reveals that Mr. Bjerke had no reason to believe that Mr. Lysne was under the influence of alcoholic beverages. He did not show any signs of being incapacitated because of drinking, during the period of time which elapsed either while he was visiting at the Bjerke residence or starting the return trip to Devils Lake. Mr. Bjerke had ridden with Mr. Lysne from Devils Lake to the Bjerke home in Churchs Ferry. Mrs. Bjerke also testified that when they arrived at the Bjerke home and had coffee, they did not appear to be under the influence of alcoholic beverages. Therefore, it cannot be said that when Mr. Bjerke agreed to ride back to Devils Lake with Mr. Lysne, Mr. Bjerke was in fact aware of the probability that Mr. Lysne would operate his automobile in a negligent manner, superinduced by Mr. Lysne’s consumption of alcoholic beverages.
The issue of contributory negligence as it applies to Mr. Bjerke is not considered, for the reason that the record does not reveal any acts on Mr. Bjerke’s part which contributed to the accident.
*508This Court has repeatedly held that where an appellant demands a trial de novo and a retrial of the entire case in an appeal from a judgment in an action tried to the court without a jury, the findings of the trial court will be given appreciable weight by the Supreme Court, especially where such judgment is based upon the testimony of witnesses who appeared in person before the trial court. Koistinen v. Farmers Union Oil Co. of Rolla, 179 N.W.2d 327 (N.D.1970); Renner v. Murray, 136 N.W.2d 794 (N.D.1965); Goheen v. Gauvey, 122 N.W.2d 204 (N.D.1963); Strobel v. Strobel, 102 N.W.2d 4 (N.D.1960). In the case at bar, the trial was of considerable length and many witnesses took the stand. However, there were no surviving eyewitnesses to this automobile accident which claimed three lives. Thus all of the testimony was adduced from those persons who were in contact with the principals during the hours before the accident and from those experts who made a physical examination of the physical facts at the scene of the disaster. Certainly if this Court is ever to give appreciable weight to the findings of a trial court, it would have to do so in the instant case where the trial court was required to consider all of the evidence in order to make numerous and complex findings of fact before rendering a decision. The trial court’s objective advantage in a case such as this one must be given appreciable weight by this Court.
The majority opinion has stated that the trial judge neither dictated into the record his ratio decidendi nor did he issue a written memorandum opinion. The majority opinion states:
“All we have are findings of fact which, although signed by him, were written with the partisan pen of plaintiff’s counsel.”
I submit that findings prevail over a memorandum opinion. If there had been a memorandum opinion issued and it had contained any inconsistency with the findings, the findings would have prevailed. Kack v. Kack, 142 N.W.2d 754 (N.D.1966); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). In addition, it is common practice in all trial courts in this State for prevailing counsel to prepare the findings, order for judgment, and judgment. It is submitted that once the findings have been approved by the trial judge, such findings become the findings of the court. I would affirm the judgment of the trial court.
KNUDSON, J., concurs.