STURTEVANT, J.
In the complaint filed in the lower court and as amended by interlineation, the plaintiffs, who are husband and wife, charge that on October 29, 1932, plaintiff Velma C. Browne was riding in the automobile of Herbert Mabie as his guest. The said automobile was then being driven and operated by defendant Mabie on Lafayette Street in the city of Santa Clara, county of Santa Clara, at or near the place where said Lafayette Street intersects and runs into Clay Street, also known as the San Francisco Highway. Continuing they alleged:
"III.
"That on said October 29th, 1932, and while plaintiff, Velma C. Browne, was riding in the automobile of said Herbert Mabie, as above alleged, said defendant, Herbert Mabie, drove and operated said automobile in which said [691] plaintiff was riding in such manner as to be guilty of wilful misconduct, and plaintiff alleges the following in that respect; that said Clay street, which is part of the San Francisco Highway, as above alleged, is a boulevard or arterial street, and was on said October 29, 1932, designated as such boulevard, and on said Lafayette street, immediately south of where same intersects with said Clay street an arterial or boulevard stop sign was erected and maintained by law, and said sign was in such a position as to be apparent to all persons entering said Clay street from said Lafayette street, and said defendant, Herbert Mabie, when he approached said Clay street observed said stop and knew that it was his duty to stop before attempting to enter upon said Clay street and knew that said Clay street was an arterial or boulevard street and knew that danger and peril to plaintiff was to be apprehended by not stopping, notwithstanding which said Herbert Mabie carelessly and negligently and wilfully and with the intention to violate the law requiring him to stop before entering said arterial street failed to bring his said automobile to a stop before attempting to enter said arterial street and drove same at an excessive rate of speed into said arterial street without stopping or pausing at said arterial stop sign.
“IIIa.
“That while plaintiff, Velma C. Browne, was riding in said automobile of Herbert Mabie, as above alleged, and while said automobile was being driven by said Herbert Mabie from said Lafayette street and into said Clay street, as above alleged, defendant Manuel Fernandez carelessly and negligently drove, operated and propelled an automobile in his possession on said Clay street, at or near where same is intersected by said Lafayette street and at the point thereon where said plaintiff, Velma C. Browne, was being driven, as aforesaid, and that said carelessness and negligence of said defendant, Manuel Fernandez, combined and in conjunction with said wilful misconduct of said Herbert Mabie caused the said automobiles driven by said Manuel Fernandez and Herbert Mabie respectively to come into violent collision.”
Defendant Mabie filed his general demurrer to the complaint and after the complaint was amended by interlineation, filed a general demurrer to the amended complaint, [692] which demurrer the trial court overruled. In due time answers were filed in behalf of the defendant Fernandez and defendant Mabie and trial was had before a jury, which returned a verdict in favor of plaintiffs Browne and against defendant Mabie in the sum of $3,000, and found a verdict in favor of the defendant Fernandez.
Plaintiffs Browne appealed from the judgment on the verdict in favor of defendant Fernandez and the defendant Mabie appealed from the judgment upon the verdict rendered in favor of plaintiffs and against Mabie.
Defendant Mabie contends that the complaint as amended by interlineation does not state a cause of action and that therefore the court should have sustained the general demurrer thereto. The attack is against the allegations contained in the complaint as hereinbefore set forth. It is argued that the facts alleged, namely, failure to stop and speeding up across the highway, do not constitute, under the law, wilful misconduct so as to entitle plaintiff Velma, C. Browne, a guest rider, to recover damages; and that the allegation (which was the matter added by interlineation) “and knew that danger and peril to plaintiff was to be apprehended by not stopping”, does not in any way add to the facts.
Since the enactment of the passenger guest rule, as now contained in section 141%.of the California Vehicle Act, there have been several well-considered cases interpreting what is meant by wilful misconduct. In Howard v. Howard, 132 Cal. App. 124, at page 128 [22 Pac. (2d) 279], it is stated: “It seems to us that the intent of the legislature, as expressed in these enactments, requires that wilful misconduct be interpreted as something quite different from negligence, even gross negligence, and that it involves distinct positive elements rather than the merely negative elements of negligence or carelessness.” After defining gross negligence as set forth in Krause v. Rarity, 210 Cal. 644 [293 Pac. 62, 77 A. L. R. 1327], and what is meant by wilful misconduct as set forth in Helme v. Great Western Milling Co., 43 Cal. App. 416 [185 Pac. 510], the opinion continues: “‘The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute “wilful misconduct” there must be actual knowledge, or that which in the law is esteemed to be the equiv[693] alent of actual knowledge, of the peril to he apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. ’
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STURTEVANT, J.
In the complaint filed in the lower court and as amended by interlineation, the plaintiffs, who are husband and wife, charge that on October 29, 1932, plaintiff Velma C. Browne was riding in the automobile of Herbert Mabie as his guest. The said automobile was then being driven and operated by defendant Mabie on Lafayette Street in the city of Santa Clara, county of Santa Clara, at or near the place where said Lafayette Street intersects and runs into Clay Street, also known as the San Francisco Highway. Continuing they alleged:
"III.
"That on said October 29th, 1932, and while plaintiff, Velma C. Browne, was riding in the automobile of said Herbert Mabie, as above alleged, said defendant, Herbert Mabie, drove and operated said automobile in which said [691] plaintiff was riding in such manner as to be guilty of wilful misconduct, and plaintiff alleges the following in that respect; that said Clay street, which is part of the San Francisco Highway, as above alleged, is a boulevard or arterial street, and was on said October 29, 1932, designated as such boulevard, and on said Lafayette street, immediately south of where same intersects with said Clay street an arterial or boulevard stop sign was erected and maintained by law, and said sign was in such a position as to be apparent to all persons entering said Clay street from said Lafayette street, and said defendant, Herbert Mabie, when he approached said Clay street observed said stop and knew that it was his duty to stop before attempting to enter upon said Clay street and knew that said Clay street was an arterial or boulevard street and knew that danger and peril to plaintiff was to be apprehended by not stopping, notwithstanding which said Herbert Mabie carelessly and negligently and wilfully and with the intention to violate the law requiring him to stop before entering said arterial street failed to bring his said automobile to a stop before attempting to enter said arterial street and drove same at an excessive rate of speed into said arterial street without stopping or pausing at said arterial stop sign.
“IIIa.
“That while plaintiff, Velma C. Browne, was riding in said automobile of Herbert Mabie, as above alleged, and while said automobile was being driven by said Herbert Mabie from said Lafayette street and into said Clay street, as above alleged, defendant Manuel Fernandez carelessly and negligently drove, operated and propelled an automobile in his possession on said Clay street, at or near where same is intersected by said Lafayette street and at the point thereon where said plaintiff, Velma C. Browne, was being driven, as aforesaid, and that said carelessness and negligence of said defendant, Manuel Fernandez, combined and in conjunction with said wilful misconduct of said Herbert Mabie caused the said automobiles driven by said Manuel Fernandez and Herbert Mabie respectively to come into violent collision.”
Defendant Mabie filed his general demurrer to the complaint and after the complaint was amended by interlineation, filed a general demurrer to the amended complaint, [692] which demurrer the trial court overruled. In due time answers were filed in behalf of the defendant Fernandez and defendant Mabie and trial was had before a jury, which returned a verdict in favor of plaintiffs Browne and against defendant Mabie in the sum of $3,000, and found a verdict in favor of the defendant Fernandez.
Plaintiffs Browne appealed from the judgment on the verdict in favor of defendant Fernandez and the defendant Mabie appealed from the judgment upon the verdict rendered in favor of plaintiffs and against Mabie.
Defendant Mabie contends that the complaint as amended by interlineation does not state a cause of action and that therefore the court should have sustained the general demurrer thereto. The attack is against the allegations contained in the complaint as hereinbefore set forth. It is argued that the facts alleged, namely, failure to stop and speeding up across the highway, do not constitute, under the law, wilful misconduct so as to entitle plaintiff Velma, C. Browne, a guest rider, to recover damages; and that the allegation (which was the matter added by interlineation) “and knew that danger and peril to plaintiff was to be apprehended by not stopping”, does not in any way add to the facts.
Since the enactment of the passenger guest rule, as now contained in section 141%.of the California Vehicle Act, there have been several well-considered cases interpreting what is meant by wilful misconduct. In Howard v. Howard, 132 Cal. App. 124, at page 128 [22 Pac. (2d) 279], it is stated: “It seems to us that the intent of the legislature, as expressed in these enactments, requires that wilful misconduct be interpreted as something quite different from negligence, even gross negligence, and that it involves distinct positive elements rather than the merely negative elements of negligence or carelessness.” After defining gross negligence as set forth in Krause v. Rarity, 210 Cal. 644 [293 Pac. 62, 77 A. L. R. 1327], and what is meant by wilful misconduct as set forth in Helme v. Great Western Milling Co., 43 Cal. App. 416 [185 Pac. 510], the opinion continues: “‘The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute “wilful misconduct” there must be actual knowledge, or that which in the law is esteemed to be the equiv[693] alent of actual knowledge, of the peril to he apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. ’
“While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a ease the thing done by a defendant must amount to misconduct as distinguished from negligence, and that this misconduct must be wilful. While the word ‘wilful’ implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.” To the same effect see Walker v. Bacon, 132 Cal. App. 625 [23 Pac. (2d) 520]; Turner v. Standard Oil Co., 134 Cal. App. 622 [25 Pac. (2d) 988]. Not expressing our approval of the pleading as a model, we are unable to say that it wholly fails to state a cause of action against the defendant Mabie.
All the other questions discussed by defendant Mabie involve the same point as raised upon, the demurrer to the complaint.
An entirely different question is presented on the appeal of the plaintiffs against the defendant Fernandez. On this phase of the case plaintiffs contend that the verdict in favor of defendant Fernandez is contrary to the evidence in view of the fact that the evidence overwhelmingly pre[694] ponderated' in plaintiffs’ favor that defendant Fernandez was guilty of negligence and that such negligence contributed to the accident which resulted in the injuries to plaintiff. That is not a question of law for the court to determine but was a question of fact for the jury under proper instructions. Assuming that the evidence showed the defendant Fernandez guilty of negligence and that the jury so believed, nevertheless it was for the jury to determine whether that negligence in any degree proximately contributed to the injuries received by the plaintiff Browne.
The plaintiffs complain that the court improperly instructed the jury. That complaint is without merit. Seldom has a record come before us which shows so much care on the part of the trial judge. The instructions were given in the morning so the jury had the entire day to deliberate on its verdict. After examining and approving them, the trial judge gave every requested instruction and gave a few additional ones of its own motion. They cover seventy folios of typewritten manuscript. One was: “I instruct you that in applying these instructions to the evidence they are to be taken as a whole.” We have read all of them and find no prejudicial error in any one. It is claimed that there was no evidence of contributory negligence and therefore no instruction on that subject should have been given. Under the facts contained in the record we think it may not be said that there was no evidence on the subject of contributory negligence. (Bauer v. Tougaw, 128 Wash. 654 [224 Pac. 20, 21].) But all of that evidence was to the effect that the plaintiffs were not guilty of contributory negligence. In his answer defendant Fernandez set forth, in effect, three defenses, (1) that the accident was caused by the negligence of the defendant Mabie, (2) that the defendant Fernandez was not negligent, and (3) that the plaintiffs were guilty of contributory negligence. Later he requested and the trial court gave instructions on the subject of contributory negligence. But there is nothing in the record that tends to show that such verdict was based on the issue of contributory negligence.. The defendant Fernandez gave testimony to the effect that he committed no act of negligence and, if the jury believed it, the jury was well within its rights in returning a verdict in his favor. Nothing to the contrary appearing, it can therefore [695] be assumed that the jury found that Fernandez was not negligent and that' on that finding it based its verdict. Under, such circumstances the judgment may not be reversed because instructions were given on the defense of contributory negligence. (Brandes v. Pucker-Fuller Desk Co., 102 Cal. App. 228 [282 Pac. 1009]; 24 Cal. Jur. 832, 833.)
It is claimed some instructions omitted certain words. All of the instructions could not be embodied in one sentence. All read as a whole correctly stated the several rules which they were intended to cover.
The judgment appealed from is affirmed.
Nourse, P. J., concurred.