Plaintiff admittedly a “guest” in the automobile of defendant under the “guest statute”, SDC 44.0362, obtained a judgment in circuit court for injuries received in *485 an automobile accident. Plaintiff’s claim of “wilful and wanton misconduct” on the part of defendant is predicated on the premise that defendant deliberately transported plaintiff notwithstanding defendant suffered momentary periods of unconsciousness due to the malady “petit mal” and thereby knowingly exposed plaintiff to injury that would quite naturally follow an attack. Among other assignments of error defendant challenges the admissibility of certain evidence. We choose however to treat all the evidence admitted as proper, assuming without deciding its competency, and to resolve the case on the decisive issue of the sufficiency of such evidence to support the verdict. It is our opinion that the evidence considered most favorably from plaintiff’s viewpoint together with all the inferences that may reasonably be drawn therefrom in support of plaintiff’s cause of action fail to establish wilful and wanton misconduct on the part of defendant under the language of our statute as previously interpreted by this court and according to the standards laid down in prior decisions involving the statute. We therefore reverse the judgment entered by the circuit court.
The facts, stated most favorably to respondent, are substantially as follows:
Appellant, the owner and driver of the automobile was 74 years old at the time of the accident. He was driving a new 1950 Chevrolet automobile on a wide, graveled, country highway about 5:30 in the afternoon at a speed between 30 and 35 miles per hour. The day was clear and the road was dry. His passengers were his wife and the respondent who was a neighbor and friend of appellant and his wife. Appellant had made a trip from his farm home to another farm where his wife and respondent had spent the afternoon visiting to return the two women to their respective homes.
For about 15 years appellant had been suffering from spells of dizziness and momentary loss of consciousness of varying degrees of severity, none lasting more than an estimated two minutes. These spells were frequently referred to in the record as “black-outs”. Over the long period of years they had occurred with increasing frequency to the point where those most severe occurred approximately once *486 a month. The black-outs came without warning and without fixed pattern as to time of day, time of week or time of month and left no ill effects noticeable to appellant. The mildest attacks could be experienced in the presence of other persons unaware that anything unusual was occurring to appellant. In the most severe attacks appellant fell to the ground.
Appellant had driven automobiles for many years and steadily through the 15-year period of his illness. He had never had an accident and never suffered a black-out while in or driving an automobile prior to the attack that caused the accident here involved. On the day of the accident he felt perfectly well and normal. He worried about driving a car and it often passed through his mind that someone might run into his car or that he might run into them, and on the day of the accident was aware of the fact that a black-out might overtake him. He drove his car carefully on the trip here involved and testified he then had no conscious realization that he probably would have an accident, and that he did not intend to have an accident.
Respondent admitted that appellant was a careful driver and never drove fast, that he kept on his own side of the road and never did anything in his driving to cause her to be frightened about riding with him. Respondent had no knowledge at the time of the accident of appellant’s malady.
Appellant’s illness had caused him to take precautions for his own safety and to avoid certain types of work such as climbing the windmill to grease the mechanism and driving a tractor. When he purchased the new Chevrolet he advised the salesman about his fainting' spells and said he probably should not buy the car because he might wreck it. No doctor nor any other person had ever advised him not to drive an automobile.
As appellant proceeded on the trip on which the accident occurred he lapsed into unconsciousness without warning, his car gradually, and at first unnoticeably to the passengers, angled to the extreme right hand side of the road, struck a private drive embankment, bounded over it and came to rest partially on the highway and partially in the right hand ditch on the other side of the driveway. The *487 terrific jarring and jolting that resulted caused both appellant’s wife and the respondent serious injury.
This court has considered the sufficiency of evidence to establish wilful and wanton misconduct under this statute in the following cases: Melby v. Anderson, 64 S. D. 249,
Recognizing the difficulty of meeting the requirements for liability specified in the Melby decision, counsel for respondent say in their brief “Although counsel for the Respondent is of the firm opinion that the conduct of the Defendant in driving his automobile under the circumstances and at the time and place in question, was of such a character that it constituted wilful and wanton misconduct as defined by all of the decisions of this Court, we are frank to admit that the language of this Court used in some of the earlier guest cases (Melby v. Anderson, Granflaten v. Rohde) has tended tO' cause some confusion among trial courts, juries and practicing attorneys in the practical application of the definitions contained therein.” Counsel then refer to this language in the Melby opinion [64 S. D. 249,
We believe the point for which respondent’s counsel contend, that is that the intent or state of mind of the driver at the time of the accident cannot justifiably be determined by his own statement, is established law. Other courts have called the proper method of determining the driver’s intent the “external standard” . Under it the driver’s mental attitude is established not by what he said nor even by what he may actually have thought, but rather by the attitude that an ordinarily prudent person would have had under all the attending circumstances. This rule is recognized in the Melby opinion,
The problem confronting us in this case is whether or not under the standards established in the Melby decision and as we have applied them in the subsequent opinions involving the guest statute the conduct of the appellant at the time of the accident was such that reasonable men could differ in their views as to whether or not the facts here present show appellant’s conduct to have been wanton and wilful.
*489
It is our view that the element of deliberate recklessness which differentiates ordinary actionable negligence from wilful and wanton misconduct is not to be found in this case. A review of the disposition made here of the earlier cases cited above leads to the conclusion that under the measures of conduct heretofore applied by this court this appellant’s conduct was not wilful and wanton. See also Peterson v. Denevan, 8 Cir.,
In the Granflaten case [66 S. D. 335,
In the Granflaten case the defendant after drinking intoxicating liquor persisted in driving at excessive speed and passing other automobiles on the level and on hills over the protests of his passengers. In setting aside the verdict rendered in favor of the plaintiff, we held that the defendant, when he deliberately subjected the plaintiff to the hazard created by his conduct, was not wilful and wanton in that he was not aware at the time that he was subjecting plaintiff to probable danger. Measured by the Granflaten facts appellant, in the case at bar, notwithstanding he deliberately transported respondent knowing of his susceptibility to black-outs, did not have the conscious realization (as determined by the external standard of the prudent person) that he was probably subjecting respondent to the injury that resulted.
The ultimate and decisive question in the case at bar *490 has to do with the degree of danger to which this appellant subjected respondent. We said in the Melby case and have reaffirmed it in every decision on the subject since then, the hazard must be so great that the injury will probably result and that liability does not exist if the injury may only possibly result. The standards which we set up in the Melby case are stated in all their essentials in somewhat different language in Restatement of the Law where it is said that liability under this type of statute “involves a high degree of probability that substantial harm will result”. Restatement, Torts § 500, and S.N. We have boldfaced especially pertinent words in the following quotations from Restatement. In Comment a. under § 500 it is stated with reference to liability “It must involve an easily perceptible danger of substantial bodily harm or death and the chance that it will so result must be great.” Referring to the defendant it is stated in Comment c. “It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.” In Comment g. it is pointed out that the reckless disregard of the safety of others necessarily present under our type of statute differs “from that negligence which consists in intentionally doing an act, with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.” The most that the ordinary, reasonable man could say of the conduct of the appellant in the case at bar is that he intentionally did an act knowing that it contained a risk of harm to respondent. Reasonably prudent men cannot say that appellant was conscious or should have been conscious of the fact that his act in transporting respondent was of a highly dangerous character. Therefore appellant’s conduct does not partake to an “appreciable extent * * * of the nature of a deliberate and intentional wrong” as required in the Melby opinion, and as a matter of law is not wanton and wilful under the statute. If we were to hold otherwise we would “draw the line too near to due care” and would almost certainly be opening a door leading to impossible con *491 fusion and eventual disregard of the legislative intent back of this statute designed to give relief from liability for negligence.
In Antonen v. Swanson cited above we held that a defendant as a matter of law was not guilty of wanton and wilful misconduct under these facts: he did not feel well, felt groggy, tired and sick from a malaria condition, sang to keep himself awake shortly prior to the accident, and then after falling alseep or lapsing into a “subconscious state of mind” ran off the road, seriously injuring plaintiff. In support of that decision we relied on Michigan cases, among them Perkins v. Roberts,
Counsel for respondent have argued that placing the burden upon a plaintiff of showing mens rea or a guilty mind is in effect the same as requiring a plaintiff to conform to the rules of procedure and evidence in a criminal action. This is essentially what we recognized the rule to be under the guest statute in the case of State v. Bates, 65 S. D. 105,
We believe there is no clear case precedent for our fact situation. Respondent relies on State v. Gooze,
Since it is our view that reasonable men could not differ as to whether the conduct of the appellant conformed to the standard established by the legislature, the question must be decided by the court rather than the jury. Because of our conclusion that the evidence is not sufficient to support the verdict, the judgment from which the appeal is taken is reversed.