¶1(dissenting)—For convenience and better continuity, the facts and issues will be re-stated in this dissent.
¶2An automobile collision occurred on Riverside avenue in Spokane, Washington, March 17, 1956, at approximately one o’clock in the morning. The plaintiff Will W. Bown, a guest passenger in one of the automobiles involved, brought this action against the defendant Frances M. Fleischauer, the driver of the other car, to recover damages for his personal injuries, loss of wages, and medical expenses. Although her husband was joined as a party defendant, Frances Fleischauer will be referred to herein as though she were the sole defendant (respondent).
¶3•The plaintiff alleged that the defendant who was entering Riverside avenue from a private driveway, was negligent in failing to yield the right of way, and that such negligence was the proximate cause of the accident. The defendant denied that she was negligent and by way of affirmative defenses alleged: (1) That she stopped and looked before leaving the driveway and seeing no trafile proceeded to turn right; that the collision was caused solely by the negligence of the plaintiff’s host-driver; (2) that the plaintiff was guilty of contributory negligence in riding with a driver who he knew, or should have known, was intoxicated, and without remonstrating against his speed and recklessness.
¶4The issue of whether the defendant stopped before entering the avenue was withdrawn during the trial on the defendant’s motion without objection by the plaintiff.
¶5At the close of all the evidence, the defendant challenged the sufficiency thereof to take the case to the jury. The trial court concluded that the plaintiff had failed to prove any negligence on the part of the defendant, and that the collision resulted solely through the negligence of the appellant’s host driver Queen. Judgment was entered accordingly dismissing the action with prejudice. This appeal followed.
¶6Appellant’s first assignment of error is that the trial court erred when it denied his motion for a default judgment. *427The majority is correct in its disposition of this assignment. The granting of or refusal to grant a motion for default rests within the sound discretion of the trial court.
¶7The proceedings at the hearing on the motion are not set forth in the statement of facts, and the order of the trial court denying the motion does not recite any reasons relied upon by the court in making its ruling. Therefore, from the record presented on this appeal, there is no affirmative showing that the trial court abused its discretion in denying the appellant’s motion. Hence, this court is bound by the conclusive presumption that the discretion was rightly exercised and not abused. Paine-Gallucci v. Anderson, 35 Wn. (2d) 312, 212 P. (2d) 805 (1949); Garrett v. Nespelem Consolidated Mines, 18 Wn. (2d) 340, 139 P. (2d) 273 (1943).
¶8Appellant’s remaining assignments, of error raise the question of whether the trial court erred in sustaining respondent’s challenge to the sufficiency of the evidence and dismissing the action without submitting the case to the jury.
¶9A challenge to the sufficiency of the evidence, a motion for nonsuit, or a motion for a directed verdict, admits the truth of the opposing party’s evidence and all inferences that reasonably can be drawn therefrbm, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the party against whom the motion is made. Traverso v. Pupo, 51 Wn. (2d) 149, 316 P. (2d) 462 (1957). In ruling upon a challenge to the sufficiency of the evidence, a motion for nonsuit, or a motion for a directed verdict, no element of discretion is involved and the trial court can grant such motion only when it can be held, as a matter of law, that there is no evidence or reasonable inference therefrom to sustain a verdict. Fink v. Dixon, 46 Wn. (2d) 794, 285 P. (2d) 557 (1955); Williams v. Hofer, 30 Wn. (2d) 253, 191 P. (2d) 306 (1948). Reviewing the evidence with these rules in mind, the facts appear as follows:
¶10Immediately prior to the collision, the appellant was riding as a guest passenger in an automobile owned and being driven, at the time, by his host Patrick Queen. The appellant was in the front seat on the right-hand side and Carolyn and *428Richard L. Dennison (also guest passengers) were seated in the back. The Queen car was proceeding in a westerly direction on Riverside avenue when it collided with the left rear fender of the respondent’s car, a short distance west of the private parking lot from which it had emerged. After the initial impact, the Queen car traveled approximately one hundred and fifteen feet before it struck a tree stopping it. As a result of this accident, the appellant suffered serious injuries.
¶11On the evening preceding the accident the respondent was employed at the Spokane Elks Club and after finishing her evening’s work went to the private parking lot nearby where she had parked her car. The entrance and exit to this lot are both on the north side of Riverside avenue. Respondent testified that she stopped at the curb line of the west exit driveway and looked in both directions. Seeing no traffic she proceeded to turn right onto the avenue. From the place where she stopped she stated that she could see about a block to the east and that her vision for this distance was unobstructed. She testified further:
“Q. About how long was it from the time you looked east that you pulled out -into the street? A. Well, it is an automatic clutch, and I would say it is just a small-—just a short time. Q. Just two or three seconds? A. Just the normal time for that to take hold.”
¶12Riverside avenue, at the point where it intersects with the parking lot in question and for approximately two blocks to the east and for several blocks to the west, except at intersections, is divided by a center parkway or traffic island. The traveling portion north of the parkway or island is twenty-four feet wide and is for west bound (one-way) traffic only. This portion has no marked lanes, for travel, and parking is permitted only on the north side. The maximum lawful rate of speed in this area is twenty-five miles per hour.
¶13The point of impact was established at approximately twelve feet west of the west exit driveway of the parking lot. The physical facts reveal that the pavement was dry at the time of the accident; that the Queen car left skid *429marks for a distance of eighty-three feet prior to the impact and traveled one hundred fifteen feet thereafter, before it struck a tree with sufficient force to push the motor back about a foot and • a half. The evidence that there was sufficient space between the left of the respondent’s car and the center parkway for another to pass appears to be uncontradicted.
¶14Patrick Queen, who was also injured as a result of the accident, testified that he could not remember the speed he was traveling prior to the collision, but that he did not believe it was excessive. Richard L. Dennison (guest passenger in the Queen car) testified that the car in which he was riding was traveling approximately twenty-five miles per hour. On cross-examination he testified, in part, as follows:
“Q. You have been in the body and fender business? A. Yes, sir. Q. And you have had in the shop—whether at Stoddard and Wendle or wherever it was you were working-—lots of cars that have been in accidents? A. Yes, sir. Q. Did you ever see a car like that that had skidded 83 feet, leaving rubber burns on the pavement, in a side-swipe collision with another car, and then proceed down the street and hit a tree, and do that damage, and travel 25 miles an hour in your business as a repairman? A. Yes, sir, 1 have. Q. You have? A. Yes, sir. Q. Skidding 83 feet and doing that damage at 25 miles an hour? A. I have seen cars going at less speed than that and do more damage than that in the front end. Q. From your experience in automobile work and repair work don’t you know, Mr. Den-nison, that a car traveling 25 miles an hour on dry, level pavement can stop in 21 feet? A. Yes, sir, approximately they can. Q. Well, then, what would you say about 83 feet of skid, and doing this damage—still say he was— A. May I ask a question, sir? Q. Yes. A. Was the skid marks up there to the impact, or when we collided with this other car? Q. Yes. A. There was none after? Q. None after. Any other questions? A. No, sir. Q. You still say 25 miles an hour? A. I would say approximately, sir. He wasn’t exceeding the speed limit at all.” (Italics ours.)
¶15Thereafter, on redirect examination, he testified:
“Q. Counsel asked you about 83 feet of skid, Mr. Denni-son. Do you know the measure of how fast a car would be *430traveling if it would leave 82 or 83 feet of skid? A. I would say approximately—under 40 miles an hour.” (Italics ours.)
¶16It was within the province of the jury to determine the credibility and weight to be given to the testimony of this witness. See McUne v. Fuqua, 42 Wn. (2d) 65, 253 P. (2d) 632 (1953); Rettinger v. Bresnahan, 42 Wn. (2d) 631, 257 P. (2d) 633 (1953). See, also, 88 C. J. S. 408, 475, Trial, §§ 208, 214. Thus, considering Dennison’s testimony in the light most favorable to the appellant, the jury would be entitled to believe that the speed at which the Queen car was traveling, prior to the collision, would have placed it within the respondent’s unobstructed range of vision (one block) at the time she entered the street, notwithstanding her testimony that she looked and did not see the car. If the Queen car was there to be seen, the respondent would be charged with having seen it. See Roberts v. Leahy, 35 Wn. (2d) 648, 214 P. (2d) 673 (1950); Silverstein v. Adams, 134 Wash. 430, 235 Pac. 784 (1925).
¶17There was no deception in this case since one is not deceived by that which one does not see. Smith v. Laughlin, 51 Wn. (2d) 740, 321 P. (2d) 907 (1958), and cases cited therein.
¶18It must be remembered that the respondent, entering a public street from a private driveway, was the disfavored driver, and it was her duty (1) to bring her car to a full stop at a point where, before entering the street, she could see approaching traffic, (2) to look and observe traffic conditions, (3) to yield the right of way to all vehicles upon the street, and (4) to adopt such additional precautions as may have been necessary to assure a reasonable margin of safety under the existing circumstances. See Sandberg v. Spoelstra, 46 Wn. (2d) 776, 285 P. (2d) 564 (1955); RCW 46.60.190 [cf. Rem. Rev. Stat., Vol. 7A, § 6360-92]. From the -evidence outlined, the jury could conclude that the respondent was negligent in not seeing and yielding the right of way to the Queen car and that such negligence was a proximate cause of the resulting collision. The question of any negligence on the part of appellant’s host-driver need not be considered, since the rule is well settled in this state *431that the negligence, if any, of a host-driver is not imputed to his guest and would not, therefore, bar his right of recovery. See Watson v. Northern Pac. R. Co., 37 Wn. (2d) 374, 223 P. (2d) 1057 (1950); Boyle v. Lewis, 30 Wn. (2d) 665, 193 P. (2d) 332 (1948); Winston v. Bacon, 8 Wn. (2d) 216, 111 P. (2d) 764 (1941). See, also, Rutherford v. Deur, 46 Wn. (2d) 435, 282 P. (2d) 281 (1955).
¶19The respondent’s affirmative defense that the appellant was guilty of contributory negligence in riding with a driver who he knew, or should have known, was intoxicated, and without remonstrating against his speed and recklessness, was not passed upon by the trial court in view" of its disposition of the case. Neither was this considered by the majority in this court, it having affirmed the trial court’s judgment of dismissal. However, the position taken in this dissent now makes it necessary that this defense be considered. The defense is to be distinguished from and not confused with “imputed negligence.” In Rutherford v. Deur, supra,we said:
“. . . The duty of a guest is prescribed in Bauer v. Tougaw, 128 Wash. 654, 224 Pac. 20, in which we said:
“ ‘The rule applicable to this situation is that if the plaintiff, in the exercise of due and ordinary care, such as would be exercised by a reasonably prudent and cautious man, saw, or should have seen, that the driver of the car was conducting himself in a negligent manner, and if, under those circumstances, in the exercise of due and ordinary care, a reasonably prudent and cautious man would have warned or cautioned or attempted to persuade the driver from his reckless conduct and drive his car in a careful and prudent manner, and failed to give such warning or caution or to make such attempt, and such failure caused or contributed to the collision, then the passenger would be guilty of contributory negligence which would bar his recovery.’ ” (Italics ours.)
¶20Whether the appellant, in the instant case, exercised the care required under the circumstances is a question of fact to be determined by a jury and, therefore, cannot properly be considered by this court as a possible ground for sustaining the judgment of the trial court.
¶21*432While it may be admitted that an examination of the record has revealed substantial evidence to support the respondent’s contentions and the judgment entered, this court should nevertheless, by applying the rules previously stated for testing the sufficiency of appellant’s evidence to take his case to the jury, reverse the judgment of the trial court and remand the cause with instructions- to grant a .new trial.
¶22Rosellini and Ott, JJ., concur with Hunter, J.
¶23March 19, 1959. Petition for rehearing denied.