delivered the opinion of the Court-.
Thе appellee in this case was injured at about midnight July 14th, 1921, in a collision between an automobile in which 'be was being driven and a guy pole owned by the appellant located within the outlines of the state road, a public highway iu Caroline County, Maryland, at a рoint where the road maleéis a sharp bend or curve; and this suit was brought by him through his father and next friend to recover for those injuries. 'The case was tided in the Circuit Court for Cecil County, to which it had been removed and, the verdict and judgment being in favor of the plaintiff, the defеndant appealed. The record contain© one exception, and the controlling question which it present® for our considerlaition is whether upon all the evidence in the case the appellee was as a matter of law guilty of negligеnce contributing to the accident complained of. In dealing with that question upon the defendant’© prayer's w'e must assume the truth of all evidence tending to support the plaintiff’s claim, together with such inferences as may naturally and legitimately be drawn therеfrom. Thus dealt with these are the facts:
Ou the night of thie accident Richard H. Merriken, who was then twenty years of age, with Alvin Brown and Clarence Pense was driven by Leslie Lee from Denton, where he *575 then lived, to Oyster Shell Point to & dance. Lee was a licensed driver and the oar which he drove belonged to his father, although he drove it constantly. At a point on the State Road, neiar Williston, the road curves or bends sharply, and about thirty-seven feet north of the center of the curve in the direction of Denton, on the easterly side of the road, therе was a guy pole to which the appellant’® telephone pole on the opposite side of the road was attached to lessen the strain placed on it by the curve. 'The road at that point was of tarred macadam, and the distanсe, measured across it between the guy pole on the east side of it and the telephone pole on the opposite side, was said to he twenty-two and onedialf feet. The guy pole Was within the travelled way of the road, with the tracks of passing vehicles within a hand’s breath of it, ,and so placed that one driving an automobile approaching. it from the south would not be able to see it at night by the lights of the machine until he had turned the •corner, and the curve or bend was so sharp that machines passing it in a nоrtherly direction .at a speed of from fifteen to twenty miles an hour might skid .and he forced into contact with it.
On the night of the accident Lee, who lived at Hobbs in Merriken’s neighborhood, drove Merrifeen, Brown ’and Pense to Oyster Shell Pbint to. the dance referred to. They lеft the dance to return to Denton between eleven thirty and twelve o’clock. On their return Lee drove and occupied the left front seat, .and Brown the right front seat. Merrikem and Pense occupied the rear seats, and some time before -they reached the curve to which we have referrеd they both fell asleep.
Merriken was quite familiar with the road, hut prior to that night Lee, the driver, knew nothing of it at .all, although he had not communicated that fact to Merriken.
Lee testified that he approached the curve referred to at ■about fiften to twenty miles .an hour, that he ®a,w no warning post or sign .and that, when he reached it, he found i-t too abrupt to take and was .about to drive into, a field when he *576 saw the pole in such a position that he could not do that, and he then attempted 1» drive around the curve, but in that effort hi® car skidded into oontalct with the pole, smashing the-rear wheels of the automobile 'and injuring Merriken.
Many of these facts were disputed -and were contradicted by other testimony. Eor instance there was evidence that the pole was nоt in the travelled Way of the road, that when Lee approlaohed the curve 'he was driving at from thirty to' thirty-five miles an hour, and that at the center of the curve there wasi placed as a warning of danger a striped post referred to .as a barber pole. But as it was the exclusive function of the jury to resolve that conflict, it is unnecessary forra to refer further to» it.
At the close' of the whole case the plaintiff offered three prayers of which the second and third were granted, and the-defendant fivе, of which the third, fourth and- fifth were granted. All the other prayers were refused. The plaintiff’s third prayer was.the damage prayer usual iu daises of this character, .and was unobjectionable. Hi® second prayer, while inartificial in form and really inapplicablе toi the facts of the case, could not possibly have injured the defendant. In substance it instructed the jury that if they found that Leie was in control of the car when the accident happiened ■and that the plaintiff had noi control over it, and that no negligenсe of his contributed to the accident, that Lee’s negligence could not be imputed to' him. The defendant did not contend that the doctrine of imputed negligence applied to' the facts of this ease 'and, as it appeared from the uncontradicted evidence that the plaintiff neither owned nor oontrlolled the 'automobile and was asleep» at the time of the accident, it must be conceded that it did not.
Dorchester County v. Wright,
The real question presentеd by the appeal, however, is raised by the refusal of the defendant’s first and second prayers, and it is this: Was the plaintiff guilty of contributory negligence as a matter of law (a) because he fell asleep, or (b) because he did not before he fell .asleep warn the driver of the ear in ’Which he was riding of the dangerous curve ?
To justify a court in chara,ctarizing conduct as negligent in law it must involve some “prominent and decisive act, in regard to> the effect and character of which no room is left for ordinary minds to differ.”
Waltring v.
James,
Applying these principles to the facts of this case, the *578 defendant’s first and second prayers were properly refused. It cannot be said as a matter of lаw 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 toi consider that circumstance in passing upon the question of his negligencе together with the other circumstances of the case. There is nothing in the record to indicate that Merriken knew that Lee was unfamiliar' with the road, they both lived in the same neighborhood, he was in the car as Lee’s guest and passenger, and he may well havе believed that when Lee started from Oyster Shell Pbint to Denton that he knew the road there, especially as Lee had on that same night driven him from Denton to Oyster Shell Point. In the absence of any evidence to justify such a conviction he was not conclusively bound to presume that Lea would 'operate the car in a negligent, reckiess or imprudent manner, or that he would drive over a strange road at such a speed 'a® would 'endanger his passengers or that he would disregard such plain and obvious warning® of dangеr a®' the black and white striped poste or “barber poles,” one of which, according to the testimony of some of the witnesses, was placed at the canter of the curve where the accident occurred.
We 'do not understand that the law requires 'all the passengers in an automobile to exercise the same degree of vigilance and caution in apprehending and detecting danger toi an automobile over which they have noi control a® is required of the person driving it. Such a requirеment would be in many instances .impracticable, and compliance with it would often promote rather tiran prevent accident. Of course, if there is an apparent danger known to the passenger, or which by due care he might discover, and he suffers the driver to incur it without warning or protest, his conduct may well be called negligent, but no .such conditions exist in this case. The danger here was of a character which every 'driver of an automobile commonly and frequently encounter®, and which may by the exerсise of ordinary care and prudence be *579 avoided. He was not alone, there was with him on the seat by bis side another passenger who actually did warn him as they -approached the ’Curve, although Lee said he did not hear the warning.
Erom some of "the еvidence in the case the jury may have believed that the accident occurred through the concurring negligence of Lee and the appellant, Lee in ¡operating the car in a reckless and dangerous manner ¡at the time of the accident, and the 'appellant in placing its pole in sudh a, position as to menace the safety of the travelling public. But it dees not appear that when Merriken fell asleep Lee wias driving at an excessive speed, or in a negligent manner. The аccident occurred in rounding the curve, hut it is not app>arent that Merriken, even if he had been ¡awake and watching, could have from his pioisition on the rear seat have seen the curve when they reached it in time to have warned the driver that he wаs approaching it, because not only Were Lee 'and Brown in front of him, hut they had the advantage of the lights, of the machine which he had not. The hour was late, it was not apparent that he couldi have prevented the accident had he been awake, .and, under such circumstances, we cannot say that in allowing himsielf to¡ fall asleep! he was guilty of contributory negligence as a matter of law.
Much of what we have said applies ¡aliso to the contention that he was negligent as a matter of law because he did not warn Lee before he started from Oyster Shell Point to Den-ton of the dangers on the ¡State Road. The record fails to show that Merriken had any reason to believe that Lee was not a reasonably safe and prudent driver, or thаt he did not know the road, ¡and its dangers. Certainly it would be going very far to require that every guest invited to¡ ride in an automobile should, under the circumstances of this case, before accepting the invitation point out to Ms host the dangers of the road, under penalty of being charged with negligenc in law for any failure to. do¡ iso. In ¡our opinion that is not the law, and our attention has been called to nio authority which could justify our recoginition ¡of it ¡as such.
*580
Certainly the cases relied upon by the appellant do- mot do that.
Balto. & O. v. McCabe,
It follows from what we have said that the judgment appealed from must be affirmed.
Judgment affirmed, with cods.