Clark, C. J.
Tbis case was before us, 181 N. C., 215, upon facts substantially tbe same as in tbis appeal, and tbe Court beld in an unanimous opinion tbat “Where tbe owner of an automobile bas bis son to operate it as bis chauffeur, both for business purposes and for tbe comfort and pleasure of bis family, and there is evidence tbat be bas given bis permission for tbat son, just over 16 years of age, to use it in escorting tbe plaintiff’s intestate, a young girl of about tbe same age, to a dance, it is sufficient, upon tbe question of tbe agency of tbe son, to bind tbe father for negligence which proximately caused tbe death of tbe plaintiff’s intestate when returning from tbe dance in tbe automobile”; also, tbat “It was tbe duty of tbe father not to entrust tbe safety of tbe young girl to bis son unless be knew tbat be was careful and prudent in tbe operation of tbe machine, and be is responsible in damages for tbe death of tbe plaintiff’s intestate proximately caused by bis son’s negligence in driving tbe machine while acting as an escort.”
On tbis second trial, tbe evidence was much strengthened for tbe plaintiff by tbe testimony tbat about a month prior to tbe time of tbis occurrence tbe chauffeur, Bynum Tudor, bad been driving tbis same car, racing with other cars along tbis same road between tbe Country Club and Winston-Salem; tbat two weeks prior to tbis time be bad been indicted in Greensboro for violation of tbe automobile law, and bis father, George 0. Tudor, tbe defendant, bad arranged tbe indictment; tbat on Sunday, two days prior to tbis occurrence, tbis 16-year-old son bad violated tbe automobile laws by reckless driving on a street in Winston, and on tbe following day bad been tried in tbe police court and bis father, tbe defendant, bad paid tbe fine. Tbis was tbe very day before tbis lamentable occurrence. Tbe father, therefore, bad full notice of tbe reckless character of bis son as a chauffeur, and bis unfitness to be trusted in charge of an automobile, especially on an occasion of tbis kind involving tbe safety and life of a young girl.
There was, besides, on tbis trial, evidence of liquor being in tbe car, its distribution by tbe chauffeur and bis older brother, also in tbe car, and tbe defendant’s brief stresses tbe evidence tbat tbe chauffeur himself (though denied by him under oath) on tbat occasion was drinking, if not intoxicated. There was much evidence, uncontradicted, of tbe [344] disregard of the law, not only in reckless driving and speeding far in excess of that forbidden by law, but according to tbe brief of defendant’s counsel, of a violation of law against driving an automobile while being intoxicated. For these acts of negligence the defendant was responsible both for having placed his son in charge of the car and by reason of his liability for the negligence of his agent.
The plea of contributory negligence is thus set out: “Said Bynum Tudor undertook to pass one or more of said cars and to reach' the home of plaintiff’s intestate in advance of her guest, and that the rate of speed at which he was driving and his effort to pass cars were due entirely to the request of plaintiff’s intestate; and the said plaintiff’s intestate at all times acquiesced in and approved the method and manner of driving of Bynum Tudor, and these defendants plead as contributory negligence in bar of plaintiff’s recovery the aforesaid acts and conduct of plaintiff’s intestate.”
It is not alleged, nor is there any proof tending to show that the unfortunate victim of this accident was an employee, or had any control whatever, or attempted to exercise, by any act, any control whatever over the operation of the car. The burden was upon the defendants to sustain the plea of contributory negligence by the greater weight of the testimony, and there is a want of any evidence sufficient to be considered by the jury, who, however, have negatived it. C. S., 523; Cogdell v. R. R., 132 N. C., 855 (Walker, J.); Watson v. Farmer, 141 N. C., 454; Wright v. R. R., 155 N. C., 329 (Allen, J.). The only proof offered was the testimony of George C. Tudor, Jr., the brother of the chauffeur, that on the way home Ruth Tyree asked Bynum Tudor to “get her home in a hurry in order to get there before Miss McKinsey, because if she did not get home before Miss McKinsey did her mother would think she had been riding after the close of the dance.” This was properly excluded by the judge. It did not show any control of the car, or any request for an excessive speed, or tend to show that the request was the proximate cause of the death of this young girl. It was a perfectly reasonable request, and was not competent in any way to support the charge that the deceased was responsible or that the remark caused the occurrence.
But it is said that the following evidence, which was admitted by the court, should have that effect: Govan Caldwell testified that about three-quarters of an hour before leaving the Country Club for home, while the witness and Bynum were talking in the presence of Ruth Tyree about having a race with John Casper at a very rapid rate of speed, “Ruth said she wanted to go as fast as they had been going,” Bynum said, “Let’s go now,” to which she answered, “No, let’s wait until we go home,” and Bynum replied that he would run as fast as she wanted to.
[345] That remark, which was no part of the res gestee, Barker v. In. Co., 163 N. C., 175, though the judge admitted it, and the excluded testimony that while in the car on the way home she requested Bynum to “get her home in a hurry, to get there before Miss McKinsey did, otherwise her mother would think she had been riding after the close of the dance,” is all the evidence offered to place upon the head of this young girl the •responsibility of being the cause of this terrible disaster! Neither the plea nor the evidence would have justified the jury to come to such a conclusion. To his credit, the boy himself did not on his oath make such assertion. On the contrary, in his testimony he swore frankly, “When I left the Country Club the reason I had for driving at the rate of speed I did was that I was going home. I wanted to pass another car — the car Miss McKinsey was in. I passed 3 or 4 cars to the best of my knowledge before I came to the Goodman car.” He did not try to put the blame on the girl, but like a man said he drove fast because he wanted to pass another ear.
There is no evidence that Bynum Tudor knew what car Miss McKin-sey was in, and the mere request by Ruth Tyree “to get her home in a hurry” did not license Bynum Tudor to drive at the terrific speed which was a violation of law. Besides, Fin Horton testified that he and Bynum had made an agreement to race back home and Bynum had offered to bet $5 on the result.
The jury found upon the issues submitted that: (1) The plaintiff’s intestate was killed by the negligence of the defendant Bynum Tudor, as alleged in the complaint; (2) that Bynum Tudor was the agent or servant of the defendant George C. Tudor at the time mentioned in the complaint; (3) that the plaintiff’s intestate did not contribute to her death by her own negligence, as alleged in the answer; and assessed the damages.
The very able counsel for the defense have presented every possible exception, but we do not consider it necessary to elaborate and discuss more fully the contentions presented.
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Clark, C. J.
Tbis case was before us, 181 N. C., 215, upon facts substantially tbe same as in tbis appeal, and tbe Court beld in an unanimous opinion tbat “Where tbe owner of an automobile bas bis son to operate it as bis chauffeur, both for business purposes and for tbe comfort and pleasure of bis family, and there is evidence tbat be bas given bis permission for tbat son, just over 16 years of age, to use it in escorting tbe plaintiff’s intestate, a young girl of about tbe same age, to a dance, it is sufficient, upon tbe question of tbe agency of tbe son, to bind tbe father for negligence which proximately caused tbe death of tbe plaintiff’s intestate when returning from tbe dance in tbe automobile”; also, tbat “It was tbe duty of tbe father not to entrust tbe safety of tbe young girl to bis son unless be knew tbat be was careful and prudent in tbe operation of tbe machine, and be is responsible in damages for tbe death of tbe plaintiff’s intestate proximately caused by bis son’s negligence in driving tbe machine while acting as an escort.”
On tbis second trial, tbe evidence was much strengthened for tbe plaintiff by tbe testimony tbat about a month prior to tbe time of tbis occurrence tbe chauffeur, Bynum Tudor, bad been driving tbis same car, racing with other cars along tbis same road between tbe Country Club and Winston-Salem; tbat two weeks prior to tbis time be bad been indicted in Greensboro for violation of tbe automobile law, and bis father, George 0. Tudor, tbe defendant, bad arranged tbe indictment; tbat on Sunday, two days prior to tbis occurrence, tbis 16-year-old son bad violated tbe automobile laws by reckless driving on a street in Winston, and on tbe following day bad been tried in tbe police court and bis father, tbe defendant, bad paid tbe fine. Tbis was tbe very day before tbis lamentable occurrence. Tbe father, therefore, bad full notice of tbe reckless character of bis son as a chauffeur, and bis unfitness to be trusted in charge of an automobile, especially on an occasion of tbis kind involving tbe safety and life of a young girl.
There was, besides, on tbis trial, evidence of liquor being in tbe car, its distribution by tbe chauffeur and bis older brother, also in tbe car, and tbe defendant’s brief stresses tbe evidence tbat tbe chauffeur himself (though denied by him under oath) on tbat occasion was drinking, if not intoxicated. There was much evidence, uncontradicted, of tbe [344] disregard of the law, not only in reckless driving and speeding far in excess of that forbidden by law, but according to tbe brief of defendant’s counsel, of a violation of law against driving an automobile while being intoxicated. For these acts of negligence the defendant was responsible both for having placed his son in charge of the car and by reason of his liability for the negligence of his agent.
The plea of contributory negligence is thus set out: “Said Bynum Tudor undertook to pass one or more of said cars and to reach' the home of plaintiff’s intestate in advance of her guest, and that the rate of speed at which he was driving and his effort to pass cars were due entirely to the request of plaintiff’s intestate; and the said plaintiff’s intestate at all times acquiesced in and approved the method and manner of driving of Bynum Tudor, and these defendants plead as contributory negligence in bar of plaintiff’s recovery the aforesaid acts and conduct of plaintiff’s intestate.”
It is not alleged, nor is there any proof tending to show that the unfortunate victim of this accident was an employee, or had any control whatever, or attempted to exercise, by any act, any control whatever over the operation of the car. The burden was upon the defendants to sustain the plea of contributory negligence by the greater weight of the testimony, and there is a want of any evidence sufficient to be considered by the jury, who, however, have negatived it. C. S., 523; Cogdell v. R. R., 132 N. C., 855 (Walker, J.); Watson v. Farmer, 141 N. C., 454; Wright v. R. R., 155 N. C., 329 (Allen, J.). The only proof offered was the testimony of George C. Tudor, Jr., the brother of the chauffeur, that on the way home Ruth Tyree asked Bynum Tudor to “get her home in a hurry in order to get there before Miss McKinsey, because if she did not get home before Miss McKinsey did her mother would think she had been riding after the close of the dance.” This was properly excluded by the judge. It did not show any control of the car, or any request for an excessive speed, or tend to show that the request was the proximate cause of the death of this young girl. It was a perfectly reasonable request, and was not competent in any way to support the charge that the deceased was responsible or that the remark caused the occurrence.
But it is said that the following evidence, which was admitted by the court, should have that effect: Govan Caldwell testified that about three-quarters of an hour before leaving the Country Club for home, while the witness and Bynum were talking in the presence of Ruth Tyree about having a race with John Casper at a very rapid rate of speed, “Ruth said she wanted to go as fast as they had been going,” Bynum said, “Let’s go now,” to which she answered, “No, let’s wait until we go home,” and Bynum replied that he would run as fast as she wanted to.
[345] That remark, which was no part of the res gestee, Barker v. In. Co., 163 N. C., 175, though the judge admitted it, and the excluded testimony that while in the car on the way home she requested Bynum to “get her home in a hurry, to get there before Miss McKinsey did, otherwise her mother would think she had been riding after the close of the dance,” is all the evidence offered to place upon the head of this young girl the •responsibility of being the cause of this terrible disaster! Neither the plea nor the evidence would have justified the jury to come to such a conclusion. To his credit, the boy himself did not on his oath make such assertion. On the contrary, in his testimony he swore frankly, “When I left the Country Club the reason I had for driving at the rate of speed I did was that I was going home. I wanted to pass another car — the car Miss McKinsey was in. I passed 3 or 4 cars to the best of my knowledge before I came to the Goodman car.” He did not try to put the blame on the girl, but like a man said he drove fast because he wanted to pass another ear.
There is no evidence that Bynum Tudor knew what car Miss McKin-sey was in, and the mere request by Ruth Tyree “to get her home in a hurry” did not license Bynum Tudor to drive at the terrific speed which was a violation of law. Besides, Fin Horton testified that he and Bynum had made an agreement to race back home and Bynum had offered to bet $5 on the result.
The jury found upon the issues submitted that: (1) The plaintiff’s intestate was killed by the negligence of the defendant Bynum Tudor, as alleged in the complaint; (2) that Bynum Tudor was the agent or servant of the defendant George C. Tudor at the time mentioned in the complaint; (3) that the plaintiff’s intestate did not contribute to her death by her own negligence, as alleged in the answer; and assessed the damages.
The very able counsel for the defense have presented every possible exception, but we do not consider it necessary to elaborate and discuss more fully the contentions presented.
The evidence offered as to the conduct and record of Bynum on that occasion and before was not to show his general reputation or character, but that he was a reckless driver and, taken in connection with other evidence, was proof that his father knew or should have known it. In Linville v. Nissen, 162 N. C., 100, it is held that the father would be liable for entrusting an automobile to his son if the father knew that the son was reckless and incompetent.
The evidence of negligence of the defendant is practically uncontra-dicted and the reliance of the defendants is upon the defense of contributory negligence. Notwithstanding that Bynum and his brother both testified that Bynum did not drink anything on that occasion, the [346] brief of the defendant strenuously insists that he was intoxicated, and that the young girl was guilty of contributory negligence in that she did not know this (for there was no evidence that she did), and did not get out of the car, which was one of the last to leave, at one o’clock in the morning, three miles from home, and the defendant’s brief further stressed the proposition that she was guilty of contributory negligence in view of his fast driving because she did not get out of the car (running-, at times 60 miles an hour), and, therefore, she and not the defendants is responsible for her death. In Hunt v. R. R., 170 N. C., 442, the Court said: “It is held by the greater weight of authority that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant is-the owner or has some kind of control over the driver. This is undoubtedly the view prevailing in this State. See the learned opinion on this subject by Douglas, J., in Duval v. R. R., 134 N. C., 331, citing Crampton v. Ivie, 126 N. C., 894; both of these discussions being approved in the more recent case of Baker v. R. R., 144 N. C., 37. See, also, Bagwell v. R. R., 167 N. C., 611; McMillan v. R. R., 172 N. C., 853.” This was quoted with approval in the very recent case of Pusey v. R. R., 181 N. C., 142.
In that case the defendant requested an instruction that the plaintiff should have remonstrated with the chauffeur if he was driving too fast and have declined to go with him if the driver was drinking, and if he did not it was contributory negligence. But the Court held that it was not error to refuse such instruction because “Pusey was a guest riding for the pleasure of the trip and had no control over the car and nothing to do with driving it.”
It has been repeatedly held that for a person to be responsible for the operation of an automobile, he must be the owner of the car which is operated by some one under his authority and permission, or he must have control of the operation of the car, neither of which functions could be attributed to Ruth Tyree, who was a mere guest in the car which was entirely under the control of Bynum Tudor under the authority and by the permission of his father. The above proposition is sustained by unbroken authority in this State. Among other cases are Linville v. Nissen, 162 N. C., 95; Taylor v. Stewart, 172 N. C., 203; Williams v. Blue, 173 N. C., 452; Clark v. Sweaney, 175 N. C., 282; Wilson v. Polk, 175 N. C., 490.
In Williams v. Blue, supra, the Court said: “If it should turn out upon the trial that defendant Fannie A. Blue was exercising no control over the machine or chauffeur and was occupying it simply as the wife of John Blue and with his consent, then she would not be liable. As to the defendant Graham, . . . • if it should turn out upon the trial [347] tbat be did not assist in directing tbe operation and course of tbe machine at tbe time of tbe collision, be would not be liable.”
Among tbe later cases affirming tbis uniform doctrine of our courts is Parker v. R. R., 181 N. C., 103, where, sustaining a verdict of $45^000 for damages sustained by a lady riding in her sister’s automobile where tbe same defense of contributory negligence was set up, tbe Court said : “As to tbe contributory negligence, tbe burden of which was upon tbe defendants, tbe plaintiff was not driving tbe automobile, but was only a guest or passenger in tbe car. There is no evidence tbat she bad any control over tbe movements of tbe car, and tbe negligence of tbe driver, if there was any, cannot be imputed to tbe passenger,” citing numerous authorities.
In 2 R. C. L., 207, it is said: “Tbe prevailing view is tbat where tbe occupant has no control over tbe driver, even in a case where tbe relation ■of carrier and passenger does not exist, tbe doctrine of imputed negligence does not apply.”
In view of the negligence of tbe father in entrusting tbis machine and tbe custody of tbe young daughter of a neighbor to tbe care of a reckless and incompetent driver, as be knew bis son to be, having but recently twice obtained bis discharge from tbe law for reckless driving, once on tbe very day before, and in view of tbe overwhelming evidence of tbe chauffeur’s reckless conduct and violation of law on tbis and previous occasions, it cannot be maintained seriously tbat tbe remark of tbe girl in a casual conversation three-quarters of an hour before leaving in tbe car tbat she would like fast driving (but which she declined at tbat time), and tbe offered testimony, which was properly excluded, tbat on tbe way home she said she wanted tbe chauffeur to get home ahead of a certain other car — tbat these remarks were tbe proximate cause tbat tbis car, running perhaps 60 miles an hour, was catapulted 36 feet, by striking another car, cutting down 4 locust posts 4 to 6 inches in diameter, seriously injuring both tbe young men, destroying tbe car, and ruthlessly extinguishing tbe life of tbis bright young girl, whose safety bad been entrusted to their care. Tbis defense tbat “the woman and not the man” was to blame has been often asserted throughout tbe ages, but never on slighter foundation, not even on tbat memorable occasion when it was first pleaded by Adam. Genesis, ch. 111 ;12.
Tbe question of damages was fully discussed before tbe jury, and under a charge which was properly stated, following tbe uniform decisions of tbis Court. Hill v. R. R., 180 N. C., 492, and cases there cited by Walker, J.
Tbe amount assessed by the jury is not reviewable by us, Benton v. R. R., 122 N. C., 1009; Cook v. Hospital, 168 N. C., 256, and if it were we could not say tbat tbe verdict of $15,000 for tbe untimely death of a [348] young girl of about 16 years of age, who was shown to possess good health, an excellent character, and more than usual ability, was excessive compensation for her death, under most distressing and painful circumstances caused by most inexcusable negligence on the part of the father and criminal negligence on the part of the son, to whose protection and care she had been confidingly entrusted by her relatives.
No error.