On Motion for Rehearing. It is conceded, is conclusively shown, that the highway upon which appellant was driving was wet and slippery, with shoulders of black mud upon each side. These conditions, and the peculiar dangers thereof, were obvious to appellant, who was an experienced driver. It is further conceded that he was driving under these conditions at a very high rate of speed, and the jury found that appellee, the passenger, protested to appellant against such high speed and appellant's manner of driving, that appellant thereupon slowed down to a speed still in excess of thirty-five miles an hour, and upon attempting to pass an approaching truck appellant's car struck the mud by the roadside and was wrecked. The jury found that in all these operations appellant was guilty of negligence which proximately caused the accident and appellee's consequent injuries. The jury further found that the driver of the truck encountered by appellant in his reckless speeding over the obviously dangerous road was not guilty of any negligence proximately causing the accident. In other words, the jury very properly found, from an abundance of evidence, that the accident was chargeable wholly to appellant's negligence.
Appellant sought to evade liability by the defense that he and appellee were engaged in a joint enterprise at the time of the accident, "and had equal rights to direct and control the operation of the automobile in which they were riding," and that therefore the negligence of appellant in operating the vehicle will be imputed to appellee. If this defense had been sustained by responsive findings of the jury upon sufficient evidence, it would have relieved appellant of liability. But appellant's contention was not sustained upon either phase of that defense. For, first, the jury found, upon sufficient evidence, that the parties were not engaged in a "joint enterprise," as that term was properly defined in the court's instruction; and, second, there was no finding and no sufficient evidence to support a finding that both appellant and appellee were equally in joint control and possession of the car with respect to its management and operation, at the time of the accident. The negligence of the driver cannot be imputed to the passenger, in a controversy between themselves, unless it be shown, not only that they were at the time in pursuit of a joint undertaking, but that the passenger had equal control and management, with the driver, over the operation of the vehicle. Berry, Law of Auto. (4th Ed.) § 565 et seq.; Huddy Auto. (5th Ed.) § 682; 5 Tex.Jur. 792, § 175, and authorities there cited. So, this defense was destroyed in this case by the finding of no joint enterprise, and besides was unavailable in the absence of a finding of a common control of the operation of the vehicle. We gravely doubt if the evidence was sufficient to raise the latter issue, or authorize its submission. And in any event, it appears that appellee beseeched appellant to reduce the obviously reckless speed he was maintaining, and to exercise more care, and in this way appellee exercised all the control available to him in the situation. The whole record shows a flagrant recklessness on the part of appellant in the face of open and obvious dangers, and in spite of the protests and warnings of appellee. The cause was fully and correctly submitted to the jury, and their findings against appellant upon all the issuable facts have settled the case.
We conclude upon rehearing that the judgment should be affirmed, and it is so ordered.