Solomon, 77 Colo. 463, 42 A.L.R. 964, 238 Pac. 22. Negligence of Webb, the driver of the car, in the violation of any of his duties, cannot be imputed to plaintiff. Colorado Springs & Interurban R. Co. v. Cohun, supra. Plaintiff, being an invited guest, was under no obligation either to keep a constant lookout ahead for possible dangers, or to supervise the driver in his driving. Hedges v. Mitchell, 69 Colo. 285, 194 Pac. 620. Defendant failed to prove any fact showing or tending to show that plaintiff was guilty of negligence in any particular. St. Mary's Academy v. Solomon, supra. Sheafor, J., delivered the opinion of the court: Defendant in error, plaintiff below, and so referred to here, brought this suit against plaintiff in error, defendant below, and so designated here, to recover damages for personal injuries sustained by him in an automobile collision. Verdict and judgment for plaintiff, and defendant brings the case here, and applies for supersedeas. On November 23, 1923, about 7 o'clock A. M., a Buick sedan car owned by defendant, and being driven by Davis, his chauffeur, at the intersection of Thirty-eighth and Wewatta streets, in the city of Denver, collided with a Chevrolet car, owned and driven by one Webb, with whom the plaintiff, Eakle, was riding as a guest seated upon the front seat beside the driver. The Buick car was traveling in a westerly direction along the north side of Wewatta street, and the Chevrolet car in a northerly direction along the east side of Thirty-eighth street. At the intersection in question, and at that hour in the morning, traffic was heavy, and more or less congested. Plaintiff was familiar with that crossing, having frequently passed over it in going to and from his work. As a result of the collision, the Chevrolet car was turned around and forced into a ditch; the rear portion of the car being badly damaged. Plaintiff was thrown through the windshield, or to the right of it through the front door, striking on his head, rendering him unconscious, in which condition he was removed to a hospital. The defendant claims that Webb, the driver on the left, was guilty of negligence in not yielding the right of way to the driver on the right, and that his negligence was the cause of the collision. Defendant further claims that plaintiff was himself guilty of contributory negligence which was the proximate cause of the injuries sustained by him. Defendant's position is that "plaintiff shared in Webb's negligence and the same facts which show the negligence of the driver show also the negligence of the plaintiff;" also that the guest was required to use the same care and caution that would have been required of him if he had been the driver. Plaintiff's evidence was to the effect that he could remember nothing about the collision except the noise; that the last thing he remembered was seeing the gates go up or down on the Thirty-eighth street crossing; that he thought a freight train hit them, and the way he figured it out was that his mind was occupied; that he was not paying any attention while he was riding along there; that Webb was driving the car, and he was not. The evidence of Webb on this point was: "As I started across the intersection, I got to the middle when I heard Mr. Eakle holler, 'Look at him come,' and at that instant, almost, I was just passing the center when I was struck by the car." As to the negligence of the defendant: There was evidence tending to show that defendant's car was being driven at a rate of speed of about 40 miles an hour as it approached and entered the street intersection, which was greatly in excess of the rate of speed permitted (79 Colo. 320, 246 Pac. 280.) by the city ordinance, and, while the evidence upon this point was conflicting, there was ample to support the verdict. We have held that, although one had the right of Automobiles care. -right of way- way, he was not abduty to exercise solved from the duty to exercise reasonable care. Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 Pac. 850; St. Mary's Academy v. Newhagen, 77 Colo. 471, 238 Pac. 22. There is no evidence, disclosed by the record, which shows, or tends to show, contributory negligence on the part of the plaintiff, unless it is shown by the evidence of the plaintiff and Webb above recited. Defendant claims that, because of the foregoing evidence, the court erred in denying his motions for nonsuit and for a directed verdict, and also claims that the court erred in refusing to give to the jury his requested instruction No. 1, and in giving to the jury instructions Nos. 5 and 8. The requested instruction was properly refused. This request was to the effect that it is the duty of the driver approaching the intersection from the left to use reasonable care to see whether there is likelihood of a collision with any car approaching from the right, and to yield to the car coming from the right the right of way, and to keep his car under control so that he can so yield it; and the driver approaching from the right is not negligent by reason of a collision occurring because of the negligence of the driver on the left in not yielding the right of way. The question of the negligence of the driver, Webb, was not involved. This instruction, if given, would have told the jury that, however negligent defendant might have been, and however free from negligence the plaintiff might have been, the plaintiff could not recover if the driver of the car, in which plaintiff was riding, was guilty of negligence in not yielding the right of way to the driver of the car on conceded, then the instruction requested should requested should not have been given. Instruction No. 5 given charged the jury "that the plaintiff, being a guest in the automobile, was under no duty to keep a lookout for impending dangers," and further instructed the jury that the driver's negligence, if any, could not be imputed to the plaintiff. Defendant's objection is to the quoted part of the instruction. He makes no objection to the latter part. Instruction No. 8 given instructed the jury in effect that, notwithstanding the driver of the defendant's car had the right of way, nevertheless, if the jury found from the evidence that he was driving at an unlawful and dangerous rate of speed, and if he saw, or in the exercise of due care could have seen, the perilous position of the plaintiff in time to have slowed down and prevented the accident, and failed to use due and ordinary care to avoid the collision, the defendant would be liable, provided the injuries received by the plaintiff were the direct result of such negligence. By instruction No. 9 the jury were told that Eakle, while in the automobile as the guest of another when the other was driving, was charged with certain duties to care for his own safety, and were such as are imposed upon an ordinarily careful and prudent person under the circumstances; that Eakle could not, because another was driving, escape all obligation and care for his own safety; and that, if the jury found that Eakle failed to exercise the care and caution that an ordinarily careful and prudent person would have exercised under the circumstances, then he was guilty of contributory negligence, and could not recover, even if defendant was guilty of the negligence charged. There was no error in giving in- Automobiles for dangers. duty to look out Mary's Academy v. Solomon, 77 Colo. 463, 42 L.R.A. 964, 238 Pac. 24. In that case, Mr. Justice Denison, referring to the plaintiff who was a guest in the car of Mrs. Newhagen, said: "She had no control over the car. It was not a part of her duty to keep a lookout, and, if her duty required her to call the attention of the driver to anything she saw, she did so." Defendant contends that the the statement just quoted from the opinion means no more than that plaintiff was not required to "keep a lookout"-i. e., a constant watch-for possible danger; that it does not mean to say that the guest need not look where danger is to be apprehended; that, if more was intended, that is, that, if the court meant to hold that the guest need not look out for danger at all, or more than that the guest was not called upon to keep a constant lockout for possible danger, then the decision is in conflict with, and overrules, without mention of it, Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 70 L.R.A. 681, 81 Pac. 801, 3 Ann. Cas. 700, 18 Am. Neg. Rep. 316, and other cases holding in harmony therewith. Furthermore, that instruction No. 5 is equivalent to a directed verdict in favor of plaintiff on the question of plaintiff's contributory negligence, whereas the court should have determined, as a matter of law, that plaintiff was guilty of contributory negligence, or at least that it should have been submitted to the jury; also that instruction No. 5 and instruction No. 9 are contradictory, and require a reversal of the case. Defendant's brief is commendable for its brevity and clearness, but we do not agree with his conclusions. A different rule applies where a vehicle approaches a railroad crossing from that where automobiles are crossing a street intersection. Hunsavage v. Rocek, 74 Colo. 163, 219 Pac. 1080. The rule announced in Colorado & S. R. Co. v. Thomas, supra, does not apply to the instant case. The doctrine announced in the several cases cited as to the care required of drivers of automobiles has no application to a guest in an automobile in the circumstances appearing here. It is true, of course, that, while the negligence of a driver of an automobile cannot be imputed to the guest, the guest, notwithstanding, may be guilty of contributory negli- negligence of gence, independent guest. ly of the acts of the driver, but the rule announced in this jurisdiction, and here adhered to, is that authority and control over, and responsibility for the management of, an automobile while being driven must rest upon the driver, and not upon the guest. St. Mary's Academy v. Solomon, supra; Hedges v. Mitchell, 69 Colo. 285, 289, 194 Pac. 620. In the latter case Mr. Justice Burke said: Burke said: "But a duty to give such advice [advice to the driver as to his route, travel, speed, etc.] implies a duty to heed it, and the rear seat driver is responsible for enough accidents as the score stands without the aid of judicial precedent. The place for a passenger who knows better than the driver of a car when, where and how it should be operated is at the wheel." If one riding as a guest in the car of another were required to look out for danger and warn the driver, a most uncomfortable and harassing position would be created for the driver of a car who happened to have four or five passengers as guests; and it might well be that, if an accident happened, it could be charged to the negligence of the guests in distracting the attention of the driver as he approached or crossed every street intersection. The question did not arise in the Solomon Case, supra, nor does it arise here, what rule would be declared if the guest had looked and had observed danger and had not called it to the attention of the driv er. What we hold is that the plaintiff (79 Colo. 320, 246 Pac. 280.) was not required, in the circumstances of this case, to keep a lookout at any time for danger. We think the facts bring the instant case squarely within the rule laid down in the Solomon Case, supra, and that the latter case does not conflict with the doctrine announced in the Thomas Case, supra. In the case at bar the plaintiff says he recollects nothing of what occurred; that he does not recollect seeing any car or observing any danger. Webb says plaintiff called out, "See him come." Plaintiff was not required to look for danger, but, if he did look, and if he saw the danger, he called it to the attention of the driver. He was not, therefore, guilty of contributory negligence, and the court might have so declared as a matter of law. From the views already expressed, it follows that instructions 5 and 9 are not contradictory, and the court did not err in giving them. We do not think that instruction No. 8 is an instruction on the "last clear chance" rule. There being no contributory negli Negligencelast clear chance gence on the part of -when applicable. the plaintiff, there is no place here for such an instruction. Union P. R. Co. v. Larson, 66 Colo. 15, 18, 178 As to the question of damages: We are somewhat inclined to think that the damages awarded were in excess of such sum as would fairly compensate plaintiff for the injuries sustained, and for his outlay for medical attention, hospital fees, and charges. We cannot say, however, that they are so excessive as to indicate bias or prejudice on the part of the jury, and we cannot disturb the Appeal—exverdict. Our duty powers of and the extent of our authority in this respect are fully discussed and settled in the case of Kohut v. Boguslavsky, 78 Colo. 95, 239 Pac. 877. cessive verdict court. The supersedeas should be denied, and the judgment affirmed. Petition for rehearing denied May 24, 1926. ANNOTATION. Personal care required of one riding in an automobile driven by another as affecting his right to recover against third persons. [Automobiles, §§ 3, 45; Railroads, § 211; Street Railways, § 76.] I. In general, 293. II. At railroad crossings: a. Steam railroads, 295. b. Interurban railroads, 297. [No later decisions herein.] III. As to street cars, 297. IV. In collision with vehicles, 298. V. As to defects or obstructions in highway, 298. This annotation is supplementary to annotations on the same subject in 18 A.L.R. 309; 22 A.L.R. 1294; and 41 A.L.R. 767. The question of the contributory negligence of a guest as affecting his right to recover against the owner and operator of an automobile is covered in annotations in 20 A.L.R. 1026, supplemented in 26 A.L.R. 1428: 40 A.L.R. 1341; and post, 327. 1. In general. (Supplementing annotations in 18 A.L.R. 309; 22 A.L.R. 1294; and 41 A.L.R. 767.) The general rule set out in the annotation in 18 A.L.R. 309, to the effect that a person riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury,—that is, such care as an ordinarily prudent person would exercise under like circumstances, is supported by the following cases, decided since the publiIcation of the annotation in 41 A.L.R. 767: United States. Ryan v. Delaware, L. & W. R. Co. (1925; C. C. A. 3d) 8 F. (2d) 138. Colorado. St. Mary's Academy v. Solomon (1925) 77 Colo. 465, 42 L.R.A. 964, 238 Pac. 22, 25; CAMPION V. EAKLE (reported herewith) ante, 289. Delaware. Poynter v. Townsend (1924) Del. -, 130 Atl. 678. Tex. Civ. App. 279 S. W. 889. See also Pierce v. Baltimore & O. R. Co. (1925) 99 W. Va. 313, 128 S. E. 832. A guest in an automobile is not required to use the same vigilance as that required of the driver. Poynter v. Townsend (Del.) supra; Chapman v. Missouri P. R. Co. (1925) 217 Mo. App. 312, 269 S. W. 688; Durbin v. St. Louis-San Francisco R. Co. (1925) Mo. App., 275 S. W. 358. The duty does not devolve upon a passenger in an automobile, riding upon the rear seat, to give instructions for driving, or to keep a lookout for the driver; he is not required to assume the obnoxious role of a "backseat" driver. Uvalde v. Stovall (Tex.) supra. As the court in the reported case (CAMPION V. EAKLE, ante, 289) points out: "If one riding as a guest in the car of another were required to look out for danger and warn the driver, a most uncomfortable and harassing position would be created for the driver of the car who happened to have four or five passengers as guests; and it might well be that, if an accident happened, it could be charged to the negligence of the guests in distracting the attention of the driver as he approached or crossed every street intersection." "The care required of the guest in an automobile is that required of an ordinarily prudent person under like circumstances. The duty upon him is not original with respect to the operation of the vehicle, but resultant, and that only from known and appreciated circumstances reasonably requiring action upon his part." Melican v. Whitlow Constr. Co. (Mo.) supra. In Poynter v. Townsend (Del.) supra, the court, charging the jury, after declaring the law in Delaware to be that the negligence of the operator of a vehicle is not imputable to one injured or killed while riding as a mere passenger therein, so as to bar recovery against third persons for injuries, states: "In such case, however, the passenger is required to exercise due care and caution, as well as the driver. |