Opinion
No. 31327.
June 22, 1931. Rehearing Denied July 17, 1931.
Suit by Joe L. Pipes and others against Claude L. Gallman. On certified questions from the Court of Appeal, Second Circuit, asking for instructions.
Questions answered.
Answers to certified questions conformed to, 135 So. 690.
Theus, Grisham, Davis Leigh, of Monroe, for appellant.
George Wesley Smith, of Rayville, for appellees.
The Court of Appeal states that defendant, 24 years old, invited four high school girls, each about 16 years old, to ride in his automobile, two of whom sat on the front seat with the driver and two on the rumble seat behind. He drove along a graveled road at 55 miles per hour, hit loose gravel and upset, injuring all four girls. The Court further states: "The plaintiffs were aware of the excessive speed but made no protest. The excessive speed was the proximate cause of the accident."
The Court of Appeal then ask us two questions which mean the same thing, to wit: Whether the failure of the plaintiffs to protest against the excessive speed of the car was contributory negligence.
The Court of Appeal has itself answered that question, and answered it correctly in Hutchens v. Morgan, 12 La.App. 545, 125 So. 309, wherein it was held that a guest who was aware that the driver was proceeding at an excessive rate of speed and made no protest was guilty of contributory negligence. And this court therein denied a writ of error on March 10th 1930.
That case must therefore prevail over Timberlake v. Cassidy, 1 La.App. 630, if there be any conflict between the two cases. But there is no conflict, because in the last case it was found that the guest who failed to give warning did not become aware of the danger until too late to avoid it. Hence that case is not applicable.
Answer.
Both questions are therefore answered in the affirmative.
O'NIELL, C.J., dissents, especially with regard to the two girls who were riding on the rumble seat.