#### Bennett v. Bell.

Opinion delivered March 19, 1928.

*694 Joiner & Stevens and Jones & Jones, for appellant.

McKay & Smith, for appellee.

Kirby, J.

The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers and to avoid personal injury to them, and this duty extends to all such passengers, whether guests by sufferance, invited or self-invited. Black v. Goldwebber, 172 Ark. 862, 291 S. W. 76, 2 R. C. L. 1183; Huddy, Automobiles, 117, § 18; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855, 859.

There are two acts of negligence alleged in the complaint; the driving of the car at an excessive and dangerous rate of speed, and the handling of it in its operation in a careless, negligent and dangerous manner, and it is complained that some of the instructions given for the appellee disregard altogether.one of the charges of negligence.

Instruction No. 11 allowed the jury to find for the defendant if they believed from the evidence that the plaintiff’s injury was caused by the condition of the road at the place of the wreck, and not from the high rate of speed it was being driven, if a person of ordinary experience and sagacity could not have foreseen that the accident might occur.

Under instruction No. 14 they were told, if they found an automobile was approaching the one in which plaintiff was riding from an opposite direction, and that it was necessary for defendant to drive to the side of the road in meeting said automobile, and that loose gravel on the side of the road where the defendant necessarily drove caused the car to skid, without the fault of the *695defendant, and that the wreck of the automobile was caused thereby, they should find for the defendant.

These instructions disregarded the alleged negligence in operating the car at an excessive and dangerous r;ate of speed as combined and concurring with the operation of the car upon the bad road, and were .'both erroneous. If the injury was caused by the alleged negligence of operating the car at a high and dangerous rate of speed on the bad road, or- in turning out on the loose gravel to avoid the oncoming car, the defendant would still have been liable for the injury.

It is well settled that negligence, in order to render a person liable, need not be the sole cause of the injury, and that one is liable if his negligence concurred with an inanimate cause producing it. The negligent act or omission must be the cause which produced the injury, but it need not be the sole cause, nor the last or nearest one. The law will regard the proximate as the efficient 'and responsible cause. Of course, no injury could have resulted from the bad condition of the road or the loose gravel unless the car was being operated thereon, and its operation at the place and in the manner might have been negligent because of such bad condition, even though it had been driven at a much lower rate of speed than alleged; in other words, ordinary care in the operation of the car required the driver to take into consideration the existing bad condition of the iroad over which he was driving.

Appellee stated that the road was new, had just been completed, and there was no watchman on it since the bridge had burned out, and there was a curve where ihe accident happened, something like a mile from the creek, and he was almost around the curve, “and I saw the lights of a car coming, and I got out of this little place where the tracks had been running, and when I did I got over the side, and my hind wheels skidded, and that gravel had not been packed, they just throwed it up there on the bed of the road; they did not subgrade, and all I could account for is that the hind wheel's got out of the *696ruts and skidded in that loose gravel, and my car turned right square to the left, and I like to have gone over in the ditch to the left, and then I turned to the right, and that is when the car turned over.”

The court also erred in giving defendant’s requested instruction No. 8, telling the jury that, if they believed from the evidence-that plaintiff got into the defendant’s automobile knowing he was in such an intoxicated condition' as to make him unduly reckless in the driving of the automobile, he assumed the risk of riding in the automobile under such conditions, and cannot recover for any injury caused thereby. -This instruction was abstract, defendant’s, intoxicated condition not having- been pleaded, nor any risk assumed by plaintiff on account of it, and the evidence offered to show such condition was objected to, and the instruction disregards altogether appellant’s contention that, he only consented to ride around the block to the restaurant, in accepting the invitation and getting into the car.

The instructions relative to the settlement and release were also erroneous. No. 4 -unduly stresses the question, and told the jury they were called upon, first, to determine whether there had been a settlement of the claim for damages, and that they need not consider either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the question. Instruction No. '2 told the jury that, if the defendant went to the residence of the plaintiff, and plaintiff offered to accept from the defendant the sum of $400, or any other sum, in full settlement “of any claims that he might have against the defendant for damages,” and that, pursuant to said agreement, the defendant paid said sum to the plaintiff, he was bound by the settlement, and could’ not recover, notwithstanding that they, the jury, might believe the settlement was improvident and unwise.

The plaintiff testified that the defendant wanted to pay certain hospital bills and expenses, which he was entitled to, specifying them, as part of his-damages if he recovered, amounting to $400, and that he permitted *697him to do so. That nothing was said about a settlement of his entire claim for damages, and that he had no intention of doing so, and did not make any settlement of it.

Said instruction No. 2 was misleading, and the jury could have understood from it that," if he settled any claim or any part of the damages,'he could not recover in the suit, and especially was this true since the court had laid so much stress on. the question of settlement, having 'told the jury to first determine whether a settlement had been made, and not to regard either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the. question of settlement. Of course, if pláintiff had made, without-fraud or imposition, a full settlement of his claim for damages for $400, and accepted -the payment thereof-, he would have been bound thereby, and could not have recovered anything further, as the court told the jury, in instruction No. 3 given at appellee’s request.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.