¶1 (concurring).
¶2 The ultimate question presented by this appeal is: under the evidence would a jury of reasonable men be justified in finding that defendant in driving the truck acted in marked disregard of the safety of others. If so, there was, of course, a question of fact to be presented to the jury.
¶3 I am of the opinion, though not without some doubt, that there was. There was before the jury not merely the driver’s testimony that she felt drowsy several miles back from the scene of the accident, but the testimony of the route taken to arrive at such scene and her actions just prior to the fatal incident. From the fact that the driver observed the stop light, responded to its warning, shifted gears, proceeded across the intersection and, then, almost immediately fell asleep, the jury might conclude that insistent premonitions of sleep must have theretofore assailed her. For the very act of shifting gears, the jury might find would, unless there was present immediately theretofore acute symptoms of drowsiness, tend to alert the operator.
¶4*382 But this fact coupled with the other evidence presented a situation which but permitted the jury therefrom and from their own experience and knowledge to infer that the driver knew of her condition and continued to drive despite such knowledge. They, however, do not create any presumption which would compel the jury to so find absent explanation to the contrary. Sec. 5, Wigmore Ev., 2d Ed., Sec. 2491. If the jury might reasonably find that the driver was aware of the approach of sleep and continued to drive despite such awareness, then, considering, the area she was traversing at the time, they might reasonably find that she drove in marked disregard of the safety of others.
¶5 I concur with the opinion of Mr. Chief Justice Larson. I also agree with Mr. Justice Wolfe’s statement that the determining question here is
“whether … the driver' continued to operate the automobile after such prior warning of the likelihood of sleep so that continuing to drive constituted a marked disregard of the safety of others.”
¶6 I also agree that sleep does not overtake the driver of an automobile without some prior warning of its approach. I think possibly there may be surrounding facts and circumstances shown which would make it so clear that the driver had no prior warning of the approach of sleep that the court would be justified in taking the case from the jury. I do not think that any such facts and circumstances were shown in this case. Nor do I think that any of the surrounding facts and circumstances here shown, except the fact that she fell asleep while driving and the experience that sleep does not overtake a driver *387 without prior warning, have any tendency to prove that she had warning of its approach.
¶7 Our problem is not what caused her to fall asleep. It is immaterial whether it was caused by fumes, the hum of the motor, the heat, the fact that she had lunched recently or her previous lack of sleep. Unless, prior to falling asleep, she was conscious of the fact that she was sleepy and apt to fall asleep if she continued to drive but nevertheless continue^ to drive, she was not guilty of a marked disregard for the safety of others. I see nothing in the fact that she felt drowsy as she left Kearns, which tends to show that she had warning that she was apt to fall asleep at the time she did. She drove several miles thereafter, and she testified that she opened the window and did not feel sleepy as she approached 5th West Street. True, the jury was not bound to believe her testimony in this regard, but the mere fact that she felt drowsy several miles back does not tend to prove that such condition continued up to the time of the accident. Nor does the fact that it was a warm day, that she had recently eaten lunch, that the hum of the motor tended to cause drowsiness, tend to prove that she did not fall asleep without any previous warning that she was sleepy. All of those conditions might exist and still the driver be alert and wide awake. To my mind the only fact in this record which tends to prove that she did not fall asleep without warning is the fact that experience teaches that a person under the tension of driving an automobile does not fall asleep without warning or the consciousness that sleep is approaching. And, as far as I know or the evidence discloses, this is just as much and no more true under the facts here disclosed than it is under other facts and circumstances. I therefore conclude that the fact of falling asleep while driving, in the absence of further showing to the contrary, is sufficient from which the jury might infer that the driver had felt sleep coming on but continued to drive in spite of the warning and in so doing acted in marked disregard of the safety of others.