he case last cited, at page 259, 93 A. 807, we said: "The act relied on to establish as a matter of law the existence of contributory negligence must be distinct, prominent, and decisive, and one about which ordinary minds would not differ in declaring it to be negligent. Where the nature and attributes of an act, relied on to show negligence contributing to an injury sustained, can only be determined correctly by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as matter of law." The above statement of the law was affirmed in the case of Chesapeake Potomac Tel. Co. v. Merriken, 147 Md. 572, 577, 128 A. 277, 279, by Judge Offutt, when he stated: "These principles have been so often and so recently stated by this court that it is unnecessary to do more than refer to Merrifield v. C. Hoffberger Co. [ 147 Md. 134], 127 A. 500 and Pearson v. Lakin [ 147 Md. 1], 127 A. 387, in which Judge Digges and Judge Parke respectively, speaking for this court, collected and reviewed the later decisions involving them." This doctrine has since been approved by this court in many decisions.
But because they are so universally used, the public safety and general welfare charge those who do use them with knowledge of their dangerous and deadly nature, and impose upon them the peremptory and inflexible duty of exercising at all times and under all circumstances reasonable care to so operate them as to avoid injury to others. An automobile driven at forty-five miles an hour on a public highway is no place for day dreams, for play, for debate, or for any other act or conduct which will divert the operator's attention from the business of driving safely (5 Am. Jur. 599, 652 et seq.; Blashfield, Encyc. of Automobile Law (1927 Ed.), pp. 286-289; Huddy onAutomobiles, sec. 367, Pearson v. Lakin, 147 Md. 1, 127 A. 387), and it has been held that even a moment's inattention may be characterized as negligence. Linzmayer v. Phair, 156 A. 918, 9 N.J. Misc. 1154; 42 C.J. 909. If Dashiell was negligent in failing to discover the mule in the road in time to avoid a collision with it, the inference that that negligence was the proximate cause of the accident is not unreasonable. Collision with the mule undoubtedly caused the accident. If he had seen it when he should have seen it, it may be inferred that he could have avoided hitting it, so that it may also be inferred that his failure to see it in time was the direct and proximate cause of the accident.
And riding without complaint during the few seconds when the car was going at the dangerous rate toward the place of collision, if the jury believed it was so going, would not support a conclusion as matter of law that the plaintiff, in time to remedy the condition, realized the danger and acquiesced in incurring it. There seems to the court to be a question of fact left open by the evidence on the point. State v. Lupton, 163 Md. 180, 191, 161 A. 393; Baltimore, C. A.R. Co. v. Turner, 152 Md. 216, 229, 136 A. 609; Kent County v. Pardee, 151 Md. 68, 75, 134 A. 33; Pearson v. Lakin 147 Md. 1, 5, 127 A. 387; 78 Univ. of Pa. Law Rev. 736 to 752. Considering the possibility of what may be regarded strictly as contributory negligence, in failing to see and warn of the car coming from the left, it seems that the jury might be permitted to find this consistent with due care under the circumstances, as the time for action was necessarily very brief, and the plaintiff might be found to have had his attention diverted without negligence.
In Maryland, as is the case in most jurisdictions, including our own, ordinary care measures the duty owed to a guest passenger. Fitzjarrel v. Boyd, 123 Md. 497, 91 A. 547; Lavine v. Abramson, 142 Md. 222, 120 A. 523; Pearson v. Lakin, 147 Md. 1, 127 A. 387. Does the evidence show lack of ordinary care on the part of Mrs. Smith? If not, the action of the trial court must be affirmed.
What we believe to be the majority opinion is that the owner or operator of an automobile owes a duty to a gratuitous guest to exercise reasonable care in its operation and not unreasonably to expose him to danger and injury by increasing the hazards of travel. In support of this view are Lasley v. Crawford, 228 Ill. App. 590; Munson v. Rupker, 148 N.E. (Ind.) 169; Pearson v. Lakin, 127 Atl. (Md.) 387; Alley v. Wall, 272 S.W. (Mo.) 999; Faggioni v. Weiss, 99 N.J.L. 157, 122 A. 840; Iannicelli v. Benvenga, 99 N.J.L. 506, 123 A. 882; Rose v. Squires, 128 Atl. (N.J.) 880; Paiewonsky v. Joffe, 129 Atl. (N.J.) 142, 40 A.L.R. 1335; Moorefield v. Lewis, 96 W. Va. 112, 123 S.E. 564; Mitchell v. Raymond, 181 Wis. 591, 195 N.W. 855; Vogel v. Otto, 182 Wis. 1, 195 N.W. 859. The opinion of the minority, which is known as the Massachusetts view, is that a gratuitous guest in an automobile can recover from the driver for injuries sustained while riding therein only when the latter is guilty of gross negligence. In Dickerson v. Connecticut Co., 98 Conn. 87, 90, 91, 118 A. 518, 519, the court in commenting on these conflicting views said: "When the journey has begun, the owner's duty is to so operate the car that no new danger to the guest is created and no increase in the danger from this mode of transportation is incurred by him. If the owner increases the danger, or creates a new danger by
' McNab v. United Rwys. Co., 94 Md. 724. These principles have been so often and so recently stated by this court that it is unnecessary to do more than refer to Merrifield v. Hoffberger Co., 147 Md. 134, and Pierson v. Lakin, 147 Md. 1."
accident happened as stated therein, "and that the defendant Gordon was not guilty of any negligence which directly contributed to said accident," the plaintiff could not recover. Naturally, if the defendant was not guilty of any negligence which contributed to the accident complained of, the plaintiff could not recover against him, but the prayer connected that self-evident proposition with a reference to the effect of her act in signing the statement, which may well have confused the jury and led them to believe that if she signed the statement she could not recover, and for that reason the court was justified in rejecting it. The paper was not a release, but an unsworn statement of a legal conclusion adopted by the plaintiff, and could not have had the effect of concluding the question of appellant's negligence, but was only relevant and material for the purpose of affecting the weight of the plaintiff's testimony. For, as said by Judge Parke in dealing with a similar statement in Pearson v. Lakin, 147 Md. 4: "While it is true that there is some conflict in the narrative of the appellee on the witness stand, and that, in a signed but unsworn statement after the accident, she said that the appellant was driving very slowly, about fifteen miles an hour, and that he had handled his automobile very carefully, yet the inconsistency and credibility of her testimony were for the jury, and her opinion and his are not controlling, if the evidence supported the inference of a greater rate of speed and of appellant's negligence in the operation of his automobile." Jones on Evidence, par. 296; 22 C.J. 298.
This can not be an all inclusive test for in many cases, instead of stopping, a driver may execute a swift turn into an intersecting street or to one side in a manner to clearly show the best of control. If in this instance plaintiff as he approached the intersecting streets was driving his car in such a manner that he could avoid dangers reasonably to be anticipated, we think a jury might say correctly that he had his car under control. The question was one of fact for the jury, Pearson v. Lakin, 127 A. 387 (Md.), and the happenings immediately after the impact were entitled to consideration, Lorah v. Rinehart, supra. Plaintiff in passing defendant's car admittedly violated the statutory speed limit.
And this is equally true of contributory negligence. So ultimately, in every case of this character it becomes necessary to view the entire surroundings to determine whether either primary or contributory negligence has been established." McNab v. United Railways Co., 94 Md. 724. These principles have been so often and so recently stated by this Court that it is unnecessary to do more than refer to Merrifield v. Hoffberger Co., 147 Md. 134, and Pearson v. Lakin, 147 Md. 1, in which Judge Digges and Judge Parke respectively speaking for this Court collected and reviewed the later decisions involving them. Applying these principles to the facts of this case, the defendant's first and second prayers were properly refused. It cannot be said as a matter of law that the defendant was guilty of negligence directly contributing to the accident merely because he was asleep at the time it happened, although the jury were entitled to consider that circumstance in passing upon the question of his negligence together with the other circumstances of the case.
But, even if we assume arguendo that Detective Bellino's assertion that the man in his hypothetical would not be charged was an improper inducement for Caldwell to admit being involved in an accidental shooting of an armed robber, the suppression court was not persuaded that Caldwell relied on the alleged improper inducement. Caldwell did not testify at the suppression hearing, and this Court stated in Ashford v. State, 147 Md. 1, 56, cert. denied, 372 Md. 430 (2002), that "the failure of a defendant to testify almost forecloses any chance of prevailing" on a suppression motion based on an alleged absence of voluntariness. Id.