However, the passenger is not held to the care that is required of the operator. The passenger has the right to rely, to a great extent, on the prudent care and skilfulness of the operator. This is necessarily so, and the reason is obvious. The passenger is not the owner, and ordinarily is not responsible for its operator. But a passenger is not absolved from all care in every case. Whether he exercised the care required of a passenger depends on the facts of the particular case, and particularly his position in the automobile, his opportunity of seeing the impending accident, and the obviousness of the danger. If the passenger sees the danger in time to avoid the accident it is his duty to warn the operator. Or, if the passenger is in such position in the car that he must have seen the danger if he had used his sense of sight as an ordinarily prudent passenger in such position would have done, and the accident happens because of the passenger's failure to see, and warn the operator of the danger he must have seen, he would be guilty of contributory negligence." II. At railroad crossings. a. Steam railroads. (Supplementing annotations in 18 A.L.R. 315; 22 A.L.R. 1294; and 41 A.L.R. 768.) occupant of a vehicle cannot abandon the exercise of his own faculties and intrust his safety absolutely to the driver, regardless of the imminence of danger or the visible lack of ordinary caution on the part of the driver to avoid harm. . . Yet it is a matter of common knowledge that under ordinary circumstances such occupants do largely rely upon the driver, who has the exclusive control and management of the vehicle, exercising the required degree of care, and for that reason courts are not justified in adopting a hard and fast rule that they are guilty of negligence in doing so. Every case must depend upon its own particular facts." And so a seventeenyear-old girl, riding as a guest of the driver and owner of an automobile, a mature man, whose conduct up until the time of the accident had indicated that he was a skilful and careful driver, cannot be declared negligence as a matter of law in assuming that the driver, before crossing a doubletrack railroad after waiting for a freight train to pass on the track nearest him, would proceed with caution as soon as an unobstructed view could be obtained, and stop the automobile if an on-coming train on the further track made it dangerous to attempt to cross, and in failing to object or protest against the starting of the automobile across the tracks before an unobstructed view could be obtained. The law does not absolve him from the exercise of care in approaching railroad crossings, although he is not charged with the same active duty of diligence that is imposed upon the driver with whom the safety at the crossing largely rests. Lundh v. Great Northern R. Co. (1925) 206 N. W. 43. Minn. A guest is required to use that degree of care that an ordinarily prudent person would use under similar circumstances. Durbin v. St. Louis-San Francisco R. Co. (1925) Mo. App. -,275 S. W. 358. But he is not under a duty to "look and listen" as the automobile nears a railroad crossing. Boland v. St. LouisSan Francisco R. Co. (1926) – Mo. —, 284 S. W. 141. The court states: "We fully subscribe to the doctrine that the So, a passenger in an automobile cannot be declared as a matter of law guilty of contributory negligence such as will bar recovery for her death, resulting when the automobile in which she was riding was hit by the defendant's train, because either she did not look before the driver attempted to make the crossing, or, looking and seeing the train, failed to call the driver's attention to it, in view of the testimony of the engineer that the automobile slowed down, and looked as if it would stop before reaching the crossing, inasmuch as, if this were so, the passenger would have the right to draw the same conclusion-that is, that the driver would stop. Durbin v. St. Louis-San Francisco R. Co. (1925) Mo. App., 275 S. W. 358. - Nevertheless, in Crawford v. Nashville, C. & St. L. R. Co. (1926) Tenn. 284 S. W. 892, it was said that the trial judge "correctly charged the jury concerning the duty of . . . the invited guest . . . to look, listen, and exercise ordinary care for her own safety as they approached the crossing, and that her failure to discharge that duty, if the proximate cause of the accident, would bar recovery." In Pennsylvania the rule is stated to be that a passenger in an automobile, who is familiar with a railroad crossing, and who makes no protest against the negligence of the driver in attempting to cross without stopping to look and listen, ordinarily, will be declared guilty of contributory negligence and denied the right to recover damages against the railroad in case of accident, inasmuch as the rule to stop, look, and listen before entering upon a railroad track is inflexible, and a passenger who knowingly permits its violation by the driver without objection tacitly joins in his act; but a guest is not to be held guilty of negligence as a matter of law because he does nothing, as he has a right to assume that the driver will do his duty, and is not required to interfere until the driver gives evidence of failing therein. So, it has been held in Loughrey v. Pennsylvania R. Co. (1925) 284 Pa. 267, 131 Atl. 260, that a passenger in an automobile may be permitted to recover for injuries sustained in a grade-crossing accident, although the driver of the automobile in which she was riding failed to stop, look, and listen before crossing, if it appears that the driver was a competent chauffeur, and had driven carefully until he had come to a level place at the foot of the grade, and there had slackened speed and acted in such manner as to indicate to the guest that he was about to stop, but instead put on the gas and ran the car quickly up the grade to the track, before the guest, according to her testimony, had opportunity to protest. The court states: "Plaintiff was not called upon to interfere so long as the driver was apparently in the act of stopping the car. That she thereafter had opportunity to do so is not so clear as to be a question of law. Being placed in sudden peril by the unexpected act of the driver, she was not required to exercise perfect judgment; just what she could or should have done in the emergency depended on the circumstances of the particular case, and was for the jury." The rule that it is negligence in itself for the driver of an automobile, in approaching a railroad crossing, to fail to stop, look, and listen for a train, does not generally apply in all its force to a passenger riding with the driver, having no control over him or his management of the car; the negligence of the passenger must be determined according to all the facts and circumstances existing at the time of the accident. Hasty v. Pittsburgh County R. Co. (1925) 112 Okla. 144, 240 Pac. 1056. Where the deceased, a passenger on an incoming train, after alighting and leaving the station, selected a taxicab on the railroad grounds by its invitation, in charge of an experienced driver accustomed to meet trains at this point and convey passengers into the city, and directed the driver to convey him into the city, the court in Pierce v. Baltimore & O. R. Co. (1925) 99 W. Va. 313, 128 S. E. 832, in an action to recover for the death of the decedent when struck by a drifting engine as the taxicab was crossing the track, held that, while the passenger was not absolved from the duty of exercising care to avoid danger, he might be justified in presuming, in the absence of circumstances of warning, that the railroad trains would not be so operated as to impose upon him the same high degree of care which he would be required to exercise if he were not a passenger, but a traveler crossing the railway at a public crossing. Declaring that the negligence of one injured at a railroad crossing while riding as a guest or passenger in the automobile of another is for the jury, the court in Lundh v. Great Northern R. Co. ((1925) Minn. , 206 N. W. 43, supra, held that the railroad com pany might be held liable for the death of one riding as a guest in another's automobile, who was killed when struck by the defendant's train, where it appeared the decedent had looked to each side before his host had attempted the crossing. However, contributory negligence will not be presumed from the mere fact of the accident or injury; and so a finding of contributory negligence on the part of a guest in an automobile, who, with two other guests and the driver, all of whom were killed when the automobile was struck by a train at a public crossing, were riding on the front seat, is not sustained by evidence that the car was being driven at 25 miles per hour when within 350 feet of the crossing, and that the occupants were laughing and talking at that time, if just before the collision the brakes on the automobile were applied, positively indicating that one or more had seen the train, and that an effort was being made to stop the automobile by the driver, who was proven to be careful and competent. Salter v. Galveston, H & S. A. R. Co. (1926) Tex. Civ. App. 285 S. W. 1112. But he cannot abandon the exercise of his own faculties and intrust his safety absolutely to the driver, regardless of the imminent danger, or the visible lack of ordinary caution on the part of the driver to avoid harm. Boland v. St. Louis-San Francisco R. Co. (1926) — Mo. —, 284 S. W. 141. In Western & A. R. Co. v. Reed (1926) Ga. App. —, 134 S. E. 134, affirming a judgment for the plaintiff, where a ten-year-old boy, riding as the guest of his brother in an automobile belonging to their father, was killed at a railroad crossing from which approaching trains were visible for a distance of 1,600 to 2,000 feet, and could be seen from any point on the road for more than 40 or 50 feet from the crossing, the court declared that it was for the jury to determine whether the decedent should have been on the lookout, or should have warned the driver, or what, if anything, he should have done in the exercise of proper care under the circumstances. And it is a question for the jury. whether a passenger who entered an automobile while it was facing a railroad crossing, a short distance therefrom, was contributorily negligent in failing to see an approaching train and warn the driver before an attempt to cross was made, where it appears that the passenger looked to the right as the automobile started across the track, but did not look to the left, his view in that direction being obstructed by the driver (it appearing that the curtains on the car were so dirty and muddy that a clear view could be obtained only through the windshield), though the plaintiff could have seen the approaching train had he looked before entering the car, and might possibly have seen it through the rear curtain had he turned around and looked through it after entering the car. Chapman v. Missouri P. R. Co. (1925) 217 Mo. App. 312, 269 S. W. 688. Where a woman riding with her husband was holding a nine-months-old infant, which she was trying to put to sleep, it was held in Northern P. R. Co. v. Moe (1926; C. C. A. 8th) 13 F. (2d) 377, to be a question for the jury whether or not she was guilty of contributory negligence barring recovery for her death in a railroad crossing accident, in failing to warn her husband of the danger of crossing railroad tracks immediately after the passing of a freight train, without knowing how many tracks were to be crossed, or whether another train might be approaching from the opposite direction. b. Interurban railroads. No later decisions herein. For earlier cases, see annotations in 18 A.L.R. 334; 22 A.L.R. 1298; and 41 A.L.R. 776. III. As to street cars. (Supplementing annotations in 18 A.L.R. 338; 22 A.L.R. 1300; and 41 A.L.R. 777.) street car, or warn the driver of 285 S. W. 768. Mo. App. IV. In collision with vehicles. It is not a part of the duty of a guest riding in an automobile to keep a lookout; his duty seems to require him merely to call the attention of the driver to anything he sees. St Mary's Academy v. Solomon (1925) 77 Colo. 463, 42 A.L.R. 964, 238 Pac. 22. So, the guest is under no duty to keep a lookout for impending danger at street intersections. CAMPION V. EAKLE (reported herewith) ante, 289. The law does not hold him equally bound with the driver to watch for the approach of vehicular traffic at street crossings; so to hold would require such constant interference with the driver as to increase rather than diminish the danger. Davis v. American Ice Co. (1926) 285 Pa. 177, 131 Atl. 720. In Maidman v. Rose (1925) 253 Mass. 594, 149 N. E. 630, affirming a judgment for the defendant, it was held to be a question for the jury whether a passenger in an automobile standing by the curb near a street intersection, injured when another automobile, as the result of a collision with a truck at the street intersection, collided with the automobile in which he was sitting, was guilty of contributory negligence in failing to change his position in the automobile, or warn the chauffeur of the impending accident, or do anything to avoid it, though he saw the truck and automobile which caused the accident when both were 40 or 50 feet from the intersection of the street, approaching in such man ner that collision between them was certain. And it is said in a recent case (Consentino v. Geldseiler (1926) N. J. L. -- 134 Atl. 908) that where there is evidence to justify a finding that a collision was due, partly, at least, to the carelessness of the defendant, it is immaterial whether the driver of the car in which the plaintiff was riding as passenger was also negligent or not. However, it does not appear that any claim was made that the plaintiff was himself guilty of contributory negligence. V. As to defects or obstructions in highway. (Supplementing annotations in 18 A.L.R. 356; 22 A.L.R. 1301; and 41 A.L.R. 780.) The mere fact that a wife riding as the guest of her husband failed to call his attention to the fact that they were approaching a defective place in the road, which she must have known existed because they had both passed over the same place earlier in the day, is not sufficient to charge her with negligence as a matter of law, especially if the husband was more familiar with the road, and was driving slowly at the time; it is only when the driver is acting in a careless manner or is approaching a danger which is known to the guest, and unknown or not apprehended by the driver, that any duty devolves upon the guest to caution or warn the driver. Kent County v. Pardee (1926) - Md. -, 134 Atl. 33. As the court points out, useless caution and advice are often more harmful than otherwise. The mere failure of the guest to advise return by another road because of a defect in the road over which they had traveled is not sufficient to charge her with negligence barring recovery against the county commissioners for injuries caused by the defect on the return trip. Ibid. G. S. G. (79 Colo. 537, 246 Pac. 789.) (79 Colo. 537, 246 Pac. 789.) Contracts, § 315-exemption - right to waive. A stipulation in a note waiving the right of exemption is void as against public policy. [See annotation on this question beginning on page 300.] ERROR to the District Court for Crowley County (Trimble, J.) to review a judgment in favor of defendant in an action on a promissory note. Affirmed. The facts are stated in the opinion Messrs. H. E. Brayton and Harry E. Mast, for plaintiff in error: There is nothing in the law of Colorado prohibiting the waiver of an exemption. Exemption claims are privileges which may or may not be exercised at the election of the party entitled thereto. The waiver is not per se illegal. The defendant might waive that personal privilege. Harrington v. Smith, 14 Colo. 376, 20 Am. St. Rep. 272, 23 Pac. 331. Mr. Lawrence E. Langdon, for defendant in error: The provision in the note by which defendant purports to waive his right to exemption was void. 25 C. J. p. 111, § 192; 11 R. C. L. p. 543, § 60; Industrial Loan & Invest. Co. v. Superior Ct. 189 Cal. 546, 209 Pac. 360; Carter v. Carter, 20 Fla. 558, 51 Am. Rep. 618; Recht v. Kelly, 82 Ill. 147, 25 Am. Rep. 301; Maloney v. Newton, 85 Ind. 565, 44 Ám. Rep. 46; Curtis v. O'Brien, 20 Iowa, 376, 89 Am. Dec. 543; Moxley v. Bush, 156, 19 Am. Řep. 61; Levicks v. Ragan, 10 Walker, 15 La. Ann. 245, 77 Am. Dec. 187; Teague v. Weeks, 89 Miss. 360, 42 So. 172; Farmers & M. Bank v. Hoffman, 5 Neb. (Unof.) 9, 96 N. W. 1044; Kneettle v. Newcomb, 22 N. Y. 249, 78 Am. Dec. 186; Branch v. Tomlinson, 77 N. C. 388; Dean v. McMullen, 109 Ohio St. 309, 142 N. E. 683; Mills v. Bennett, 94 Tenn. 651, 45 Am. St. Rep. 763, 30 S. W. 748; Slyfield v. Willard, 43 Wash. 179, 86 Pac. 392; Moran v. Clark, 30 W. Va. 358, 8 Am. St. Rep. 66, 4 S. E. 303; Stafford v. Elliott, 59 Ga. 837; Green v. Watson, 75 Ga. 471, 58 Am. Rep. 479; Crump v. Com. 75 of the court. Va. 922; Maxwell v. Reed, 7 Wis. 582; Allen, Ch. J., delivered the opinion of the court: On September 28, 1925, plaintiff in error, J. N. Weaver, secured a judgment against defendant in error, Clyde Lynch, upon a note, by confession under a warrant of attorney in the note. The court found, among other matters, that defendant "waived the right of exemption," and judgment was entered for $3,117.48. On April 16, 1926, on the petition of defendant, the court set aside its previous finding that defendant had waived the right of exemption, and ordered that the sheriff be restrained and enjoined from seizing, under any execution, any of the property of defendant which by the laws of Colorado is exempt from levy on execution. To review this last-named order, plaintiff brings error, and the cause is before us upon his application for a supersedeas. The objection to the order or judgment is that it allows the defendant the benefit of the exemption laws, after he had stipulated in the promissory note in question that he waived the right of exemption. The judgment, in this respect, was entered upon the theory that the stipulation in the note, waiving exemption, is in |