Plаintiff was a guest of defendants upon an extended automobile trip. While traveling in Arizona July 13, 1935, with defendant Mildred Owen driving, her husband, defendant Harvey Owen, asleep in the back seat and plaintiff dozing in the front seat, a tire blew *554 out, the car careеned from the highway and turned over in a ditch. Upon trial before a jury plaintiff was awarded damages of $5,000 for the injuries sufferеd by her in the accident, the judgment running against both defendants, who prosecute this appeal.
As preliminary to a discussion of the points raised by appellants it is to be noted that there was at the time of the accident no speеd limit in miles per hour in the state of Arizona. Neither did the Arizona law limit the recovery of a guest to those eases where injury or death proximately resulted from the intoxication or wilful misconduct of the driver, as is the ease in California. Ordinary negligence of the driver was sufficient, if proved, to make such driver liable for damages for injury to a guest proximately сaused by such negligence. The court herein properly took cognizance of the Arizona law in effect аt the time and place of the accident and instructed the jury in accordance therewith.
Testimony in the case was that the car at and immediately prior to the accident was being driven at a speed of about 70 miles an hоur. Appellants argued that a verdict which necessarily implies the negligence of defendant driver is unsupported by suffiсient evidence because no proof wms offered showing the standard of speed at which Arizona drivers in general ordinarily operate their automobiles. The operation of a ear at a speed of 70 miles per hоur cannot be said to be a negligent act, appellants insist, unless it be shown that it is in excess of the speed at which рrudent drivers in Arizona are accustomed to drive. The argument is ingenious but without merit. Different legal regulations may exist in the statе of Arizona and California as to the speed at which automobiles may be driven, but automobiles are the same аnd drivers are the same in both states. A California jury does not need to hear evidence as to the speed customs or habits of Arizona drivers, and such evidence would be of no assistance in determining the problem before the jury as tо whether or not the driver in this case was negligent. The court properly instructed the jury as to the Arizona law and gave customary instructions upon the subject of the degree of care and prudence such as would be exercised by аn ordinarily prudent person under the circumstances disclosed in this case.
*555 Appellants also urge that they should be absolved from liability because the accident, happening upon a highway of ample width, without traffic obstruction аnd in broad daylight, was obviously an unavoidable one for which the driver was not responsible and due solely to the blowing out of a tire. Upon this point also the jurors were fully instructed. They were told that the guest must accept the risk of an injury occurring as the sole proximate result of any mechanical defect unknown to the driver, that the driver was not liable for unavoidable accidents, and other appropriate instructions upon related lines. All the facts of the case, however, were before the jurors, and it was their province to determine whether under all the circumstancеs the driver of the car was operating it negligently. They reached the conclusion that she was chargeable with negligence and that such negligence was the proximate cause of respondent’s injuries. It is primary law that it is not the province of an appellate court to disturb such finding.
Appellants’ argument that a high rate of speed alone cannot of itself constitute negligence is not persuasive. Many other facts involved in the case were prеsented to the jurors—the type of car, the nature of the highway, its proximity to the ditch into which the car catapulted and many other circumstances. It was in evidence that respondent had once ineffectually protested аgainst the high speed of 70 miles an hour at which the car was being driven. And it may be noted that this court in the recent case of
Parsons
v.
Fuller,
(Cal. App.)
*556 Appellants cite instances in which it is claimed erronеous instructions were given or in which requested instructions were refused. We have examined the record with care in that regard and find no merit in the contentions. The charge to the jury was complete and explicit and fairly covered the legal points involved.
Complaint is made that the judgment runs not only against Mildred Owen as driver of the car but also against her husbаnd, Harvey Owen. Merely from the fact that the latter was asleep in the back seat of the car at the time of thе accident, it cannot plausibly be argued that he was not in control of the automobile and therefore not responsible. He was the owner of the ear, he had joined in the invitation to respondent to be the guest of himself and wife on the trip, and while he was not actually directing the operation of the car at the moment of the accident, he had requested his wife that morning to drive while he slept. Proof of ownership of the car and that it was being used at the time of the accident under permission of the owner establishes a
prima facie
case of responsibility for the resulting injuries as against such owner.
(Rapolla
v.
Goulart,
Judgment affirmed.
Grail, P. J., and Wood, J., concurred.