DISSENTING OPINION I do not consent to a reversal of the judgment in this case. The following is a verbatim statement of a part of the testimony of the appellant:
"Q. And you appreciated the danger that might happen to the occupants of that machine by such driving, didn't you?
A. Well, yes sir.
Q. Now you observed that fast driving as you said, at different points along the road. At about what point do you think you first observed it?
A. Well, I suppose it commenced after we left Emerichsville.
Q. How long after you left Emerichsville?
A. I didn't keep time.
Q. Well, did that occur a number of times between Emerichsville and Crawfordsville?
A. I don't say that it occurred a number of times, but it occurred. *Page 37
Q. And before you reached Crawfordsville, you knew of this manner in which he was driving, didn't you?
A. Why, yes any one knows when a man is driving fast.
Q. Now then between Crawfordsville and Covington, you also warned him different times?
A. I spoke to him about the driving, at different times when he would go too fast.
Q. I am asking you if between Crawfordsville and Covington you did?
A. Certainly.
Q. And he didn't heed you at all?
A. Absolutely not.
Q. And continued to disregard it?
A. Absolutely.
Q. And you knew that when you reached Covington that he had been disregarding every warning that you gave him?
A. Well, yes.
Q. And you knew it when you reached Crawfordsville?
A. Well, I suppose so. I don't know that he disregarded it but he didn't pay any attention, didn't reply.
Q. You knew that it didn't change his conduct?
A. Well, in a way it didn't, no.
Q. After you left Covington, you recall of warning him one time just before the accident?
A. Yes.
Q. Did you warn him any other time before the accident?
A. I don't think I did after we left Covington.
Q. And the other times of the 8 or 10 or 12 or more times was before you reached Covington?
A. Yes.
Q. You were out of the car at Crawfordsville?
A. Yes. *Page 38
Q. And at the time you got back in that car you knew that he had been driving in the manner you described, didn't you?
A. Yes.
Q. Did you voluntarily get back in the car at Crawfordsville?
A. Why certainly.
Q. Did you voluntarily get back in the car over at Covington?
A. Why certainly — I didn't get out of the car at Covington.
Q. Well, near Covington, when you made inquiry?
A. Yes, I voluntarily did.
Q. Was there a manner of conveyance by railroad or interurban that you could have come back to Indianapolis at Crawfordsville or Covington?
A. Not at Covington; there was a Crawfordsville.
Q. Was there a Big Four Railroad at Covington?
A. I suppose so, yes.
Q. Did you demand at any time that he stop the car and let you out?
A. No sir.
It clearly appears by this uncontradicted evidence, given by the appellant himself, that he fully appreciated the danger that might happen to himself and other occupants of the car because of the negligence of the driver, that he observed the fast driving at different points along the road, and that he had his opportunity thereafter to leave the car, in fact that he was out of the car more than once, and each time returned to it voluntarily. In so doing after he fully appreciated the danger, and it appearing from the evidence at both Crawfordsville and Covington that there was railroad or traction transportation by which he could have returned to Indianapolis, he was guilty of contributory negligence as a matter of law. If, as he contends, appellee was not *Page 39 using ordinary care in driving at a speed at from 35 to 40 miles an hour, then appellant, fully appreciating the danger of such speed, was not using ordinary care when he remained in the automobile having his opportunity from time to time to leave the same. In the case of Sheehan v. Coffey (1923), 205 A.D. 388, 200 N.Y.S. 55, Sheehan, the guest, as in this case had sued Coffey, the owner of the automobile, for damages because of an injury suffered through the negligence of Coffey resulting in an accident. Sheehan testified that:
"We might have been there ten or fifteen minutes and we came out and lighted the cigars up, and we started along and we got going, and right outside of Valatie we got on that road going into Hudson, and he started to speed up. . . . So he started speeding his car up, and he was going between 60 and 70 miles an hour, and he broke his speedometer. I said he was going too fast, and I didn't care so much about riding that way, and he told me to mind my own business, that he owned the car. `You are a guest of mine,' he said, and he kept laughing. He said: `You are not afraid to ride fast, are you?' I said: `I don't care much about riding so.' First, he might slack up to forty-five or fifty, and then he would step on the gas again and keep it going, and you couldn't see what distance he was making because the speedometer was broken; but I think he must have been making fifty or sixty miles an hour all of the time. When he would run into some town he would slow down to forty or fifty miles an hour, and when he got outside he would drive right along, and hitting in to Poughkeepsie I think his car was going as fast as the car could go, because he was going very fast when he hit it up around the turn there. Carroll even told him — he said he was going too fast, and he told us to mind our own business. So we were just pulling out of Poughkeepsie there. It was kind of a short turn, and we saw a car coming ahead of us."
The court held that:
"Such a guest does not satisfy the rule of due care for his own protection who makes the mild protest which this plaintiff says he made and is told to mind his own business and who without further personal *Page 40 protest or request to stop the car at a convenient spot continues to ride at the terrific rate of fifty and sixty miles an hour from a point to the north of Hudson, where he made his protest to a point the other side of Poughkeepsie, where the accident occurred, a distance of many miles. He seems to have had plenty of time and opportunity to save himself from the danger which he says was so apparent to him and against which he so mildly protested. He could have asked to be let off at the city of Hudson or at the city of Poughkeepsie or at towns through which he says they passed between those two cities, from any of which he could have made his way back to Albany or down to New York by some other conveyance. When with full knowledge of the fact that the owner and driver of the car would not brook any interference with his manner of driving the same, however reckless, the plaintiff remained in the car without further protest or attempt to protect himself from apparent danger, and there was ample time within which he might have directed that the vehicle be stopped in order that he might get out of it; especially when he could have stopped at such convenient stations as Hudson and Poughkeepsie, he was as guilty of negligence as the driver himself. He must be deemed to have acquiesced and to have taken the risk of the accident which befell him."
The court held that such a record would have sustained the granting of a motion for a non-suit or directed verdict upon the ground that the plaintiff was guilty of contributory negligence as a matter of law.
The case of Clark v. Travor (1923), 205 A.D. 206, 200 N YS. 52, states the rule of law to be that the guest should call the attention of the operator or the owner to the danger apprehended, protest against it, and unless he is delivered from it, he should get out of the car if that can be done with safety or direct that the vehicle be stopped and when stopped get out of it.
In Sharp v. Sproat (1922), III Kan. 735, 208 P. 613, 26 A.L.R. 1421, the court speaking of the duty of Sharp, the guest, to exercise due care, says: *Page 41
"If he had time and opportunity to do so, he could have warned the driver, could have protested against the excessive speed or have asked the driver to stop and allow him to leave the automobile. Whether a warning protest or request would have been heeded by the defendant is questioned, but whatever the effect would have been, as the danger was obvious, it was the duty of Sharp at least to remonstrate against the dangerous speed or insist that he be allowed to leave the car if there was time to do so after the danger became apparent."
In White v. Portland, etc., Co. (1917), 84 Or. 643, 165 P. 1005, the court says:
"It is plain, however, that an invited guest is not to be supine and inert as mere freight. Accepting the hospitality of his friend does not excuse him from the duty of acting for his own safety as a reasonably prudent person would under like conditions."
In Atwood v. Utah, etc. Co. (1914), 44 Utah 366, 140 P. 137, the court says:
"Of course, everyone who may be riding in a vehicle, whether as passanger, invitee, or otherwise, must always exercise ordinary care and prudence to avoid injury to himself, and to that end, in case of imminent danger, must leave the vehicle in case such a course is practical and necessary to avoid injury."
From these authorities it seems to be well settled that it was the duty of appellant, riding as the guest of one whom he had discovered in ample time to be careless, or reckless, to use due care for his own safety, and that in the exercise of such care, it was his duty, when his protests were not being heeded, to leave the car. This he failed to do though he had repeated opportunities, and even returned to the car at least two times when he was out of it. The facts are before us, admitted and uncontradicted, and from them we should hold that appellant was guilty of contributory negligence as a matter of law. Certainly, from the facts in evidence as above set out, the jury reached a right result, and when it has done so, the rule that erroneous instructions will not be a cause for *Page 42 reversal if the verdict is right upon the evidence is too well established to require citation of authorities. The neighborly kindness of owners of automobiles in inviting as their guests to ride with them, those who are less fortunate, is a matter of common commendatory remark. But no driver of an automobile however careful he may intend to be, always handles his car in the best and safest way, and if ungrateful guests are to be encouraged by the courts to hale those who have tried to be kind to them into court to answer before a jury for accidents which may or may not be the result of some act of negligence, owners of cars may well choose with care those upon whom they will bestow such hospitalities. When a jury under circumstances such as in this case find that such a guest has no right of recovery, there should be much hesitation on the part of the court to set aside the verdict.
As I view the facts in this case, the conduct of appellant was not so reprehensible as to justify settling, at his expense, a doubtful proposition of law, if it can be avoided, and I think it can.