Louisville N. R. Co. v. Woods, 105 Ala. 561, 17 So. 41; Townsend v. Adair, 223 Ala. 150, 134 So. 637. Negligence of passenger on motorcycle, which proximately contributes to his injuries, will bar his recovery against third party sued for simple negligence. Curley v. Mahan, 288 Miss. 369, 193 N.E. 34; Huddy, Cyc. Auto Law 506, p. 352. Where preponderance of evidence sustains defendant's plea of contributory negligence, motion for new trial on this ground should be granted. Charge 2 given for plaintiff is an erroneous statement of law, ignoring the question of proximate cause.
Certainly such a conclusion is not at variance with Rauch v. Stecklein, 142 Or. 286 ( 20 P.2d 387), with which we remain entirely satisfied. The sole issue presented by this appeal, in our opinion, is whether the plaintiff was guilty of contributory negligence by returning to the car at La Grande. The defendant, in arguing in behalf of the affirmative of this issue, cites: Hartley v. Berg, 145 Or. 44 ( 25 P.2d 932); White v. Portland Gas Coke Co., 84 Or. 643 ( 165 P. 1005); Blazer v. Freedman, 165 Wn. 476 ( 5 P.2d 1031); Hirsch v. D'Autremont, 133 Cal.App. 106 ( 23 P.2d 1066); Friedman v. Friedman, 40 Ariz. 96 ( 9 P.2d 1015); Curley v. Mahan, 288 Mass. 369 ( 193 N.E. 34); Sheehan v. Coffey, 205 App. Div. 388 ( 200 N.Y. Sup. 55); Koster v. Matson, 139 Kan. 124 ( 30 P.2d 107). The above decisions employ the familiar rule that a guest who is riding in an automobile must exercise reasonable care for his safety, and that if he fails to do so he cannot recover from his host.
When the facts are undisputed, causation is a question of law for the Court. Curley v. Mahan, 228 Mass. 369, 193 N.E. 34; Louisville N. R. Co. v. Allen's Admin., 78 Ala. 494; 1 Ala. Law Review 151. COLEMAN, Justice.
The fact that a driver momentarily turns his head to look or talk with an occupant in the rear seat does not of itself establish gross negligence. Curley v. Mahan, 288 Mass. 369, 374; Folan v. Price, 293 Mass. 76; Passler v. Mowbray, 318 Mass. 231. One of the leading cases on this issue is Adamian v. Messerlian, 292 Mass. 275, 277, in which it is noted that there "is nothing to indicate that the momentary turning by the defendant to look at one of the plaintiffs on the back seat had any relation to the cause of the accident." While the Adamian case has been frequently distinguished, it is still followed and applied in Massachusetts.
" The rule in Laffey v. Mullen, 275 Mass. 277, adopted in Curley v. Mahan, 288 Mass. 369, upon which the defendant relies, is of limited application. It establishes that where a plaintiff's testimony relates to his knowledge, motives, purposes, emotions, or feelings he is bound by such testimony and cannot have the benefit of other evidence more favorable to him. In other words, a plaintiff's testimony relating solely to such subjective matters is binding upon him.
In a number of cases momentary inattention on the part of the operator has been held insufficient to warrant a finding of gross negligence. Curley v. Mahan, 288 Mass. 369, 374 (four or five seconds). Adamian v. Messerlian, 292 Mass. 275 ("momentary").
" Under all the circumstances the question of contributory negligence was for the jury and charge 4 should not have been given. Utility Trailer Works v. Phillips, supra; Curley v. Mahan, 288 Mass. 369, 193 N.E. 34; Curran v. Earle C. Anthony, Inc., 77 Cal.App. 462, 247 P. 236; Cyclopedia of Automobile Law and Practice, Vol. 10, part 2 pps. 50 et seq. Since the case must be reversed on account of the ruling of the court on charge 4 given at the request of the plaintiff, we find it unnecessary to pass on other points raised by the appellant on this appeal.
" It seems to me that this recent exposition of the rule in Massachusetts is binding on us and that judgment should be ordered for the defendant. See, to the same effect Shriear v. Feigelson, 248 Mass. 432, 143 N.E. 307; Bertelli v. Tronconi, 264 Mass. 235, 162 N.E. 307; Cook v. Cole, 273 Mass. 557, 174 N.E. 271; Bank v. Satran, 266 Mass. 253, 165 N.E. 117; McKenna v. Smith, 275 Mass. 149, 175 N.E. 474; Richards v. Donohue, 285 Mass. 19, 188 N.E. 389; Curley v. Mahan, 288 Mass. 369, 193 N.E. 34.
Nor could it have been ruled that the conduct of the plaintiff as matter of law contributed to cause her injuries. The decisions in Laffey v. Mullen, 275 Mass. 277, and Curley v. Mahan, 288 Mass. 369, to which reference is made in the plaintiff's brief, are not controlling authority here on the issue of contributory negligence. See McGaffigan v. Kennedy, 302 Mass. 12, 17.
Manning v. Simpson, 261 Mass. 494, 496. These cases fall in the class of cases illustrated by Beaton v. Dawson, 303 Mass. 429 (see also Curley v. Mahan, 288 Mass. 369, 374; Adamian v. Messerlian, 292 Mass. 275, 276-277; Folan v. Price, 293 Mass. 76, 78-79), rather than in the class of cases illustrated by Rog v. Eltis, 269 Mass. 466, 467-468, Kirby v. Keating, 271 Mass. 390, 392-393, Picarello v. Rodakis, 299 Mass. 33, 34-35, and McGaffigan v. Kennedy, 302 Mass. 12, 15, relied on by the plaintiffs. Exceptions overruled.