McMahan, J.
Complaint by appellant in two paragraphs to recover damages on account of injuries received while riding in an automobile owned and driven by appellee; The first paragraph alleges that appellee invited appellant to become his guest and ride in defendant’s automobile from Indianapolis, Indiana, to Danville, Illinois; that appellant accepted the invitation and that, with others, they started to make the trip; that while traveling on a highway west of Covington, appellee drove the automobile in a careless manner at a speed of 40 miles an hour, and that on account of such excessive speed, appellee negligently lost control of the automobile and ran off the road into a ravine, causing the automobile to turn over and injure appellant.
. The second paragraph charges that appellee negligently drove the automobile at a speed of 40 miles an
hour “and while so driving said automobile, he carelessly and negligently attempted to turn to the right upon a highway then and there running north and south, and on account of the speed of said automobile, defendant could not then and there, and did not then and there successfully make said turn, and carelessly and negligently drove said automobile off of both said highways into a ravine about twenty (20) feet deep, causing said automobile to turn over.”
The issues being closed by a general denial, there was a trial by jury which resulted in a verdict and judgment for the defendant, from which the plaintiff appeals. The error assigned relates to the overruling of the motion for a new trial.
The accident which resulted in appellant’s injury occurred Saturday, November 6,1920. Appellant and Mr. Summers, who were riding in the rear seat of the automobile by the side of appellant at the time of the accident, were guests of appellee and his wife at their home the Sunday next prior to the day of the accident. Each of them testified that while at appellee’s house on that Sunday, appellee and his wife told them they were going to Danville, Illinois, the following Saturday to visit Mrs. Rupker’s parents arid invited appellant and Mr. Summers to go along with them. Appellee and his wife, each deny having given them any such invitation. Their testimony in substance is that appellant and Mr. Summers were self-invited guests on the trip to Danville.
Appellant contends that the court erred in giving and in refusing to give certain instructions. In answer to these contentions, appellee says the evidence shows that appellant was guilty 'of such contributory negligence as bars recovery, and that the giving or refusal to give instructions would not, even though erroneous, be reversible error.
The evidence bearing on the question of contributory negligence is, in substance, as follows: Mr. and Mrs. Rupker, with their small child, and Mr. Summers left the Rupker home about two p. m. and drove to appellant’s office where he got into the automobile. After stopping at a store for a few minutes, and at a filling station to get some gasoline, they started out on the Crawfordsville road. They stopped before leaving Indianapolis at Emerichsville bridge, leaving there sometime between 3 and 3:30, and reaching Crawfordsville, about 5 p. m., where they stopped long enough for Mr. Rupker to get out and buy a flash light. While at Crawfordsville appellant got out of the automobile, as he says, to “stretch himself.” They stopped once between Crawfordsville and Covington, when appellant got out to inquire about-the road to Covington. They stopped at Covington long enough to inquire the way. No one got out of the automobile at Covington. The accident took place four miles west of Covington. It was dark at the time. The lights on the automobile had been turned on before they reached Covington.
Appellant testified that before reaching Covington and while traveling a distance of eighty miles he called appellee’s attention to the speed of the automobile, eight to twelve times; that on each of such occasions appellee was running about 35 or 40 miles an hour. The evidence does not show how many times appellant called appellee’s attention to the speed before reaching Crawfordsville. Nor does it show at what point or points on the road, he spoke to appellee about the speed of the automobile. Appellant, when asked as to whether he spoke to appellee a number of times before reaching Crawfordsville, said he would not say it occurred a number of times, but that it occurred. It may, according to his testimony, have occurred but once while traveling the 40 miles before reaching Crawfordsville, and that one time may have
been just after leaving Indianapolis. The speed of the automobile while traveling the last 30 or 35 miles before reaching Crawfordsville may have been such as would not have impressed a reasonably prudent person that it was unsafe to continue riding in the automobile. Appellant testified that each time he spoke to appellee about the speed, they were going about 35 or 40 miles an hour, which he said was too fast to suit him; that it was because he anticipated that the speed of the automobile might result in an injury that he warned appellee. When out of the automobile at Crawfordsville, he knew appellee had been driving the automobile in the manner as described by him; that he got back into the car voluntarily; that he made no demand that appellee stop the automobile and let him out; that he could have returned from Crawfordsville to Indianapolis by the interurban railroad, and from Covington he could have returned on the railroad.
The evidence shows that it took them at least an hour and a half to run from Emerichsville to Crawfordsville— a distance of 40 miles. If it took an hour and a half to run that distance, the average speed during that time was a trifle less than 27 miles an hour. The natural inference, then, is that they were not traveling at a speed of 35 to 40 miles an hour for any great distance before reaching Crawfordsville.
There is no evidence as to the character of the road, other than that it was a gravel road at the place of the accident. Appellee testified that where there was a stretch of good road he would go at a speed of from 30 to 35 miles an hour and at other times from 18 to 20 miles an hour. The evidence as to the speed after the parties left Crawfordsville and the times and places where appellant spoke to appellee about the speed of the automobile, is as indefinite as it is as to the speed before reach
ing Crawfordsville. The automobile in which they were riding was an eight cylinder Peerless touring car.
We cannot, under this evidence, say as a matter of law, that appellant should have got out at Crawfordsville or at any other place and not have gone any farther with the party, or that he was guilty of such negligence, as necessarily bars a recovery. In
Cram
v.
City of Des Moines
(1919), 185 Ia. 1292, 172 N. W. 23, 18 N. C. C. A. 162, there was a judgment for defendant. On appeal the plaintiff, as in the instant case, challenged the action of the court in giving instructions and the defendant contended that the action of the court in giving the instructions was not reversible error, for the reason that the evidence showed the plaintiff was guilty of contributory negligence and not entitled to recover in any event.. In denying the contention, the court said: “But we fail to see the applicability of the rule. We are not favored with any suggestion how we may in reason hold as matter of law the plaintiff must fail should a new trial be awarded. We are not prepared to say that if on remand a jury should find that the driver was not negligent, or that, if he was the plaintiff did not contribute to the negligence, we should hold on appeal that such finding cannot be sustained on the evidence. For that matter, we cannot know in advancé that plaintiff will not add to the strength of his testimony. The rule invoked by appellee is applied where appellate court can find that some essential to recover is nonexistent. A familiar illustration is where there is judgment against an officer for having levied upon the property belonging to another than the execution defendant, and it appears that no notice of ownership was served. As said, we cannot affirm on the ground that reversal and remand will be idle.”
In
Clark
v.
Traver
(1923), 205 App. Div. 206, 200 N. Y. Supp. 52, cited by appellee, the plaintiff and another
man were sitting in the seat by the side of the driver. They had gone 75 or 80 miles at the terrific rate of 50, 60, and 70 miles an hour, slowing down to 45 or 50 miles an hour only when going through a town. One and only one complaint was made by the plaintiff in that case, and that was shortly after they had started and at a time whén, as the plaintiff testified, they were going between 60 and 70 miles an hour, and when he told the driver he “was going too fast” and that he, plaintiff, “did not care so much about riding that way.” The facts in that case are not to be compared with the facts in the instant case.
If, in the instant case, the testimony of appellee is to be given consideration in determining the question of appellant’s negligence, a court or jury would be justified in finding that appellant was not guilty of any contributory negligence. If appellee’s testimony is believed it is clear he was not guilty of any negligence before reaching Covington. If he was not guilty of negligence before reaching Covington, we are not prepared to say that appellant was guilty of contributory negligence.
Appellant, by instruction Np. 5, requested the ceurt to instruct the jury, that if it found he was in appellee’s automobile at the request or with the consent of appellee, that appellee failed to use reasonable care in the operation of his automobile, that appellant received his injuries by reason of such failure to use reasonable care, and without any negligence of appellant contributing thereto, their verdict should be for appellant. The court refused to give this instruction, but after modifying it by inserting the word “active” before the word “consent,” gave it as modified. Other similar changes were made in instructions tendered by appellant.
Instruction No. 4, given by the court at the request of appellee, is as follows: “One of the material allegations in plaintiff’s complaint is that at the time of the accident
in question, the plaintiff was riding with the defendant as the invited guest of said defendant. The court instructs you if you find from the evidence that plaintiff was riding at his own request and merely by sufferance of or without objection by defendant, and not as the invited guest of said defendant and without any contract between plaintiff and defendant whereby plaintiff was to compensate defendant, then in that case the defendant would owe no duty to plaintiff except- not to injure him intentionally or wilfully; and if the facts be as indicated in this instruction then your verdict should be for the defendant, unless you find from the evidence that defendant intentionally or wilfully brought about the' injuries complained of.”
We take it that the court, by the use of the expression “active consent,” meant to exclude acquiescence or implied consent. That this was what the court meant is made clear by instruction No. 4, given by the court at the request of appellee, wherein the court instructed the jury that if it found “from the evidence that plaintiff was riding at his own request and merely by sufferance or without objection by defendant, and not as the invited guest,” etc. Appellee’s contention is that appellant was simply a guest or passenger in the automobile at sufferance or with his (appellee’s) passive consent, and that under such circumstances the only duty he owed appellant was not to wantonly or intentionally injure him.
The hospitality of an owner and driver of an automobile should not be burdened with a responsibility that makes it unreasonably hazardous for him to invite, or even permit another to occupy a seat in his automobile. But one who takes another into one of these high-powered swiftly moving machines knows disaster may follow unless he operates it with the required degree of care. He must know and realize that he has voluntarily taken the life and safety of a human being into his care.
As was said in
O’Shea
v.
Lavoy
(1921), 175 Wis. 456, 185 N. W. 525, 20 A. L. R. 1008: “He must realize that he has voluntarily received into his keeping the lives and safety of his passengers, and he should not be permitted to trifle therewith, or to renounce all responsibility in such respect.”
The general rule as established by the authorities is that the owner or operator of an automobile owes to an invited guest the duty of exercising reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing the hazard of travel.
Perkins
v.
Galloway
(1915), 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190, second appeal
Galloway
v.
Perkins
(1917), 198 Ala. 658, 73 So. 956;
McGeever
v.
O’Byrne
(1919), 203 Ala. 266, 82 So. 508;
Spring
v.
McCabe
(1921), 53 Cal. App. 330, 200 Pac. 41;
Barrett
v.
Levy
(1919), 213 Ill. App. 129;
Masten
v.
Cousins
(1919), 216 Ill. App. 268;
Beard
v.
Klusmeier
(1914), 158 Ky. 153, 164 S. W. 319, 50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342;
Fitzjarrell
v.
Boyd
(1914), 123 Md. 497, 91 Atl. 547;
Bauer
v.
Griess
(1920), 105 Neb. 381, 181 N. W.
156; McKenzie
v.
Oakley
(1920), 94 N. J. L. 66, 108 Atl. 771;
Tennessee, etc., R. Co.
v.
Vanhoy
(1920), 143 Tenn. 312, 226 S. W. 225;
Glick
v.
Baer
(1925), 186 Wis. 268, 201 N. W. 752;
Pigeon
v.
Lane
(1907), 80 Conn. 237, 67 Atl. 888, 11 Ann. Cas. 371;
Mayberry
v.
Sivey
(1877), 18 Kan. 291;
Avery
v.
Thompson
(1918), 117 Me. 120, 103 Atl., 4, L. R. A. 1918D 205, Ann. Cas. 1918E 1122;
Hemington
v.
Hemington
(1922) , 221 Mich. 206, 190 N. W. 683;
Clark
v.
Traver
(1923) , 205 App. Div. 206, 200 N. Y. Supp. 52;
Patnode
v.
Foote
(1912), 153 App. Dia. 138 N. Y. Supp. 221.
In
Perkins
v.
Galloway,
supra, after a review of the authorities, it was held: 1. One not a common carrier, who voluntarily undertakes to transport another in his automobile, is responsible for injury to the person trans
ported resulting from negligence, whether the service was for compensation or was gratuitous. 2. The duty of the owner of an automobile to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of the method of travel, but he must exercise the care and diligence which a man of reasonable prudence engaged in like business would exercise for his own protection and the protection of his family and property.
On the second appeal,
Galloway
v.
Perkins,
supra, the rule as stated on the former appeal was re-affirmed, the court saying: “It does seem to be a harsh or hard rule which makes the carrier or host liable to the passenger or guest as for injury or death, in the absence of gross negligence or wantonness, especially when the passenger or guest is treated by the carrier or host, just as the latter himself is treated,' and when both are injured by the same accident, as in this case. If this be so, the reply is; The law is so written, and cannot and should not be changed to meet hard cases; such instability would make shipwreck of the law.” And after calling attention to the fact that it had been held that a gratuitous carrier of goods, like a gratuitous bailee of goods was not liable to the owner of the goods, in the absence of gross negligence, it was held that the owner and driver of an automobile who undertakes to transport another gratuitously, is liable for injuries to such person, not withstanding the rule as to the carriage of goods gratuitously by one not a common carrier. Referring to the evidence in that case the court said: “It was not necessary to a recovery that defendant himself should have
expressly invited intestate to ride in the car. The deceased was clearly not a trespasser, and was expressly invited by one of the parties in the automobile, and his presence in the car was known and acceded to by the defendant. The duty of de
fendant not to injure the deceased was therefore the same as if he had expressly invited deceased to ride with him. . . .
Under all the evidence there can be no reasonable doubt that deceased was a passenger in the automobile, and that the defendant owed him the duty which he owed any other passenger therein, and this whether or not he was the defendant’s expressly invited guest.” (Our italics.) To the same effect see
McGeever
v.
O’Byrne,
supra.
This rule is stated in Huddy on Automobiles, 5th ed. §678, as follows: “When the occupant of an automobile is injured through the operation of the machine, and it is shown that the driver was negligent and the occupant was not guilty of contributory negligence, it is clear that the latter can maintain an action against the driver and recover compensation for injuries. The fact that the occupant was a guest or gratuitous passenger of the driver or owner of the machine creates no exception to the general rule. The driver of a motor vehicle is under obligation of exercising reasonable care, not only for the safety of pedestrains and other travelers, but also for the safe transportation of his guests and other passengers in the machine. The express or implied duty of the owner and driver to the occupant of the car is to exercise reasonable care in its operation, and not unreasonably to expose him to danger by increasing the hazard of that method of travel. . . . Failing in this duty, he will be liable to the occupant in the car, for injuries which are the result of such carelessness or lack of diligence.” The rule announced is followed and approved in
Hemington
v.
Hemington, supra.
In
Pigeon
v.
Lane, supra,
it was held that as to a licensee, the owner of the vehicle could be held liable for his “active negligence” which would include • his negligent acts by which the danger was increased, or a new danger created, while the plaintiff was riding under such license.
In
Dickerson
v.
Connecticut Co.
(1922), 98 Conn. 87, 118 Atl. 518, where a guest was injured while riding in an automobile, the defendant insisted that “active negligence” was the test of his liability,
Pigeon
v.
Lane
was explained, the court saying the term “active negligence” meant no more than want of ordinary care.
A few jurisdictions have held that as between an invitor and invitee in case of gratuitous transportation, the driver of the vehicle must be guilty of gross negligence before he can be held liable for an accident. See
Massaletti
V.
Fitzroy
(1917), 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C 264, Ann. Cas. 1918B 1088, 18 N. C. C. A. 690. But in jurisdictions like Indiana, where there are no degrees of negligence, the doctrine of gross negligence is not applicable.
There are also a few cases holding that a person riding in an automobile for his own accommodation and gratuitously, cannot hold the driver liable unless the latter is guilty of a wanton of intentional wrong. See
Crider
v.
Yolande Coal, etc., Co.
(1921), 206 Ala. 71, 89 So. 285, where the court, in speaking of one who was permitted to ride in a motor truck as an accommodation and gratuitously, said: “He was at best a mere licensee, and assumed all the risks of carriage except such as might result from wanton or intentional wrong or a failure to exercise due care to avert injury after his danger became apparent.”
And in
Lutvin
v.
Dopkus
(1920), 94 N. J. L. 64, 108 Atl. 862 (two cases), the parties to the actions were members of a social organization, which held a celebration at Staten Island. The defendant, residing at Staten Island, and being the owner of an automobile, was solicited by the plaintiffs to take them to the picnic grounds and return in his automobile. On the return trip the car was overturned and the plaintiffs injured thereby. The court held that the act of the defendant in
acceding to the request of the plaintiffs possessed none of the elements of a contract and involved no elements of an invitation, so as to bring the case within the rule of law applicable to a passenger upon a railway train or a hired bus, or to cases of express or implied invitation; that the legal status of the plaintiffs was that of licensees, to whom the only legal duty imposed on the defendant was to refrain from doing any act wantonly or wilfully injurious.
And in
Mackenzie
v.
Oakley
(1920), 94 N. J. L. 65, 108 Atl. 771, where the owner of an automobile invited another to occupy a seat in his automobile, it was held that the duty of the owner was to exercise due care, and that under-the facts the rule of
res ipsa loquitur
was applicable.
In
Grabau
v.
Pudwill
(1920), 45 N. D. 423, 178 N. W. 124, the court said: “The plaintiff received no invitation to ride upon the car. Yet, the defendants knew all the time, that he was upon the runningboard of the car.. He was in plain sight. He was a guest of the defendants, by sufferance. It is true, that he was a gratuitous guest,.but this, alone, is not sufficient to relieve defendants from, at least, the exercise of ordinary care for his safety. In fact, we can see but little difference between defendants’ duty toward him as a gratuitous guest, after they acquired full knowledge of his presence on the running-board, than if they had, in the first instance, invited him as their guest.” The supreme court of West Virginia, referring to that case, said: “In that case the evidence impliedly showed an invitation to ride by the owner, from whom the duty arose to observe ordinary care not to injure the invitee; even a trespasser is entitled to this protection.”
Christie
v.
Mitchell
(1923), 93 W. Va. 200, 116 S. E. 715, 23 N. C. C. A. 306. The statement that “Even a trespasser is entitled to this protection” may not be absolutely correct as an abstract statement of the
law. But the court doubtless had in mind a case of a helpless trespasser, where his danger was known to the defendant, as was the fact in the North Dakota case and in
Davidson
v.
Pittsburg, etc., R. Co.
(1895), 41 W. Va. 407, 23 S. E. 593, which was cited in support of the statement.
In
Siegrist
v.
Arnot
(1881), 10 Mo. App. 197, where the defendant’s servant had knowingly received the plaintiff into a carriage driven by him, and where the jury had been instructed there could be no recovery in the absence of gross negligence, the cause was reversed because of the giving of this instruction, the court saying: “In the first place, there are no degrees of negligence known to the law where the subject of the bailment is a human life. Any negligence under such circumstances is culpable, and may well be deemed gross. . . . Can it be said for a moment that, where one has voluntarily taken a human life into his custody, although without reward, he is discharged from liability if he bestows in the preservation of that life no more than that degree of care which even the most inattentive and thoughtless take of their own concern? Such a doctrine would greatly lessen the sanctity of human life. I can find no case in any book which supports it. The defendant was under a higher obligation of care towards the wayfarers on the public streets, towards whom he stood in no relation of confidence, as he did towards the plaintiff. The correct principle to the case is, that ‘if a man gratuitously undertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputed to him as gross negligence.’ . . . This must, however, be said with the qualification that the word ‘gross,’ in the sense, is not used as expressing the antithesis of a certain defined degree of care. It is either used in the sense of ‘culpable’ or ‘actionable,’ or else it is a mere epithet.” The Su
preme Court, however, on appeal, acting on the theory that the evidence without conflict showed the plaintiff had entered the carriage without the knowledge or consent of the servant and that the servant at the time of the injury did not know the plaintiff was in the carriage, reversed the court of appeals and held there was no liability.
Siegrist
v.
Arnot
(1885), 86 Mo. 200.
In
Rappaport
v.
Stockdale
(1924) (Minn.), 199 N. W. 513, it was held that one who had engaged an automobile van to move his goods, which he had assisted in loading, was not a trespasser while riding in the van to the place where the goods were to be unloaded. The plaintiff not being a trespasser, the court said: “Such being the argument and concession, it is not necessary to consider whether any nice distinction should be made as to plaintiff being an invitee or mere licensee. In either event the right of recovery would have to be predicated in this case upon active negligence of the driver in the operation of the van after knowledge that plaintiff was riding thereon. Some courts hold that as to one riding even as an invitee there is no duty of the driver or owner except to refrain from wanton or gross negligence.
Massaletti
v.
Fitzroy
(1917), 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C 264, Ann. Cas. 1918B 1088, may be said to be the leading case of the courts so holding. However, the trend of the decisions in most of the states is to the effect that towards a person invited to ride in a private vehicle, though held a licensee, the driver of such vehicle owes the duty to refrain from doing any negligent acts by which the danger of riding upon the conveyance is increased or new danger created. In other words, he must drive with ordinary care.” And referring to
Mazey
v.
Loveland
(1916), 133 Minn. 210, 158 N. W. 44, L. R. A. 1916F 279, which related to an invitee upon real estate, the court said such cases were not in point.
It seems to us that the only sensible and humane rule
is that an owner and driver of an automobile, owes a guest at sufferance, the duty of using reasonable care so as not to injure him. The rule as to trespassers and licensees upon real estate, with all its niceties and distinctions is not to be applied to one riding tn an automobile at the invitation of, or with the knowledge and tacit consent of the owner and operator of the automobile. A trespasser and licensee going upon a tract of land — an inert, immovable body — takes it as he finds it, with knowledge that the owner cannot and will not by any act of his start it in motion and hurl it through space in a manner that may mean death to him who enters thereon. He who enters an automobile to take a ride with the owner, also takes the automobile and the driver as he finds them. But when the owner of the automobile starts it in motion, he, as it were, takes the life of his guest into his keeping, and in the operation of such car, he must use reasonable care not to injure any one riding therein with his knowledge and consent. It will not do to say that the operator of an automobile owes no more duty to a person riding with him as a guest at sufferance, or as a self-invited guest, than a gratuitous bailee owes to a block of wood. The law exacts of one who puts a force in motion that he shall control it with skill and care in proportion to the danger created. This rule applies to a guest at sufferance as well as to a guest by invitation.
As was said in
Colborne
v.
Detroit, etc., Ry.
(1913), 177 Mich. 139, 143 N. W. 32: “In the light of common knowledge courts can well take judicial notice of the automobile, not only as a most useful and pleasing means of swiftly transporting persons and property for pleasure or business, when properly controlled and cautiously driven, but as a vehicle in its possibilities so destructive when in the hands of careless and reckless drivers as
to spread over the land the maimed and dead until it has belittled the cruelties of the car of Juggernaut.”
The possibilities of the automobile in the hands of careless and reckless drivers is vividly told in the recent report of the Underwriters Association, wherein-, it is stated that 19,000 people were killed and 450,000 injured in automobile accidents in the United States, in 1924.
We hold the court erred in refusing to give instruction No. 5, as requested by appellant, and in giving instruction No. 4, tendered by appellee. What we have said in relation to these instruction disposes of the questions pertaining to the giving and refusal to give other instructions.
Judgment reversed with directions to sustain appellant’s motion for a new trial and for further proceedings. Nichols, J., dissents.*
* See p. 36.