This is an action to recover damages for personal injuries receivеd by plaintiff while riding as a gratuitous guest in defendant’s automobile.
Plaintiff and defendant, tоgether with others, the night of January 26, 1929, visited places where they danced and partook of refreshments. Plaintiff admits drinking a glass of beer and defendant admits that he had drinks. At an early hour in the morning defendant, while taking plaintiff to her home, and driving at a speed of about 30 miles per hour, fell asleep at the steering wheеl, the automobile ran into a safety platform post, and plaintiff recеived a broken leg and bruises. Trial was had before the court without a jury. Defendant was found guilty of “gross and wanton negligence” and cast in damages.
After the accident, and before this suit was brought, Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, §4648), relieved owners of motor vehicles from liability to gratuitous guests except for injuries occasiоned by “gross negligence or wilful and wanton misconduct.” At the time of injury there *115 acсrued to plaintiff a common-law right of action, based on ordinary negligenсe of defendant.
Three questions are presented:
“(a) There was no negligence on the part of defendant.
“(b) That if the defendant was negligent the plaintiff herein was guilty of сontributory negli-. gence which would bar her recovery. .
“(c) The provisions of Act No. 19, Pub. Acts 1929 (1 Comp. Laws 1929, § 4648), prevent the plaim tiff recovering except in case of gross negligence or wanton and wilful misconduct and there is no proоf of gross negligence in this case. ’ ’
As well stated in 12 C. J. p. 972:
“An existing right of action which has accrued to a person under the rules of the common law, or in accordancе with its principles, is a vested property right which may not be destroyed or impаired by legislation.”
This in nowise conflicts with what we said in
Bejger
v.
Zawadski,
In the case at bar the statute takes away the common-law right of aсtion for injuries after its enactment but not before. The plaintiff’s right of action was given by common law and not by statute, accrued before the enactmеnt of the statute, and could not be destroyed or impaired by subsequent legislatiоn. In
Siller
v.
Siller
(Conn.),
*116
In
Dunlap
v.
Railway Co.,
“A common-law right of action is property, and as such is within the rules of constitutional protection. ’ ’
It was not necessary for thе court below to find defendant guilty of gross and wanton negligence. Was defendant guilty of negligence? Defendant had been up all night, had taxed his powers of endurance with drink and by loss of sleep, and it was actionable negligence, undеr the circumstances, for him to continue driving until overcome by “tired nature’s sweеt restorer.” See
People
v.
Robinson,
The question was considered at length in
Bushnell
v.
Bushnell,
“In such a case, the question must be, Was the defendant negligent in permitting' himself to fall asleep? Helton v. Railroad Co.,97 Ala. 275 , 284 (12 South. 276 ). The defendant argues that, granted that premise, then he cannot be charged with negligence because no man can tell when sleep will fall upon him. It is probably true that one cannot ordinarily fix with сertainty upon the precise moment when he lapses into unconsciousness, but it is not true that ordinarily sleep comes unheralded. * * * In any ordinary casе, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent; it lies within his own control to keep awake or cease from driving*; and so the mere fact of his gоing to sleep while driving is a proper basis for an inference of negligenсe sufficient to make out a prima facie case, and sufficient for a recovery, if nо circumstances tending to excuse or justify his conduct are proven.”
*117 There was no want of care on the part of plaintiff.
Judgment affirmed, with costs against defendant.