#### THOMAS H. HOWELL, JR., by his Next Friend, G. RAY MOTSINGER v. ERSKINE T. LAWLESS, and JOHN T. THACKER, Guardian of ERSKINE T. LAWLESS.

(Filed 11 December 1963.)

AutGm~obiles § 49-

The evid~nioe ~n this case is heZ~ sufficieflt to be aubmitted to the jury on the question of ~1aintiff passenger's contrtibutory negligence in voluntarily riding without protest in a car driven by defendant when plaintiff knew defendant to be under the influence ~f intoxicating beverages.

APPEAL by dofend'aaist from McLaughlin, J., Mao~oh 1963 Civil Session of FORSYTH.

P]~iinitiff, a .gue~t p~uasemger, wa~ ~bhrown from d~fenda~n~Ys aut~ornoibi1e when i~t fa~1~d to tr~ave~ise a cirve oirj~ Imdia~iia Av~uae just outside oLf tibe city limits of Wia~ston~SaAem. I-Ic imsfjitui~cd tihis action ~o ce'cover for the resulting persoaiial inj uries~ Defendant conceded his own negligence but, rats a defense, p.lrerad the ~rlaintiff's conirtriibutory negligence as follows:

"Ph:e condition ol the dafearclant, resulting from `his having been, drinking .initoxi'cants, wise one of the -proximate c'aueee of -tihe automObile `aisciclenit ~w'hioh `oiccuured in the early monriinig of October 15, 1961, in which the plaintiff sujstaiiireid some injuries. (T)ilie plaintiff wars a(kso negligent in that be well knew that the cl'efearclant `had been `drinking intoxicating `beverages, well knew that his `ability to `operate an automobile ~nas eubetairbially impaired as a result thereo,f, but nevertheless ,the plaintiff, with full knowledge of these f~ajcts, voluntarily rode with the defendant and remained in the automobile of defendant without protest `as to tire defendant's method of operating it. . . and `tire negligent conduct of the plaintiff was one `of the `oo'ncu:sriin'g proximate causes of such injuries ais `the pliaintiff may `have `sustained."

The defendan~b off~ed' no eviclemee. At the coai~e1usion of p~Iainr~iff'~ evidence `he te~iicIered issues of negligence, contributory nigligeirce, and *671damages. Tlhe judge declined to submit the issue of contributory negligence. The jury answered the two issues submitted in favor of the plaintiff and, from judgment on the verdict, defendant appealed. Relevant portions of the plaintiff's evidence appear in the opinion.

Clyde C. Randolph, Jr., for plaintiff appellee.

Deal, Hutchins & Minor for defendant appellant.

Sharp, J.

The determinative question on this appeal is whether plaintiff's evidence, considered in the light most favorable to (the defendant, contains any inference .that the plaintiff himself was guilty of contributory negligence. Wilson v. Camp, 249 N.C. 754, 107 S.E. 2d 743. If there is more than a scintilla, of such evidence, it is a matter for .the jury. Absher v. Raleigh, 211 N.C. 567, 190 S.E. 897. Plaintiff’s evidence discloses the following facts:

About 4:30 p.m. on October 14, 1961, plaintiff and defendant purchased six twelve-ounce cans of beer at a tavern. They then repaired to an ABC store where they bought a pint of one-hundred proof vodka. At 6:00 p.m. they 'arrived at the Dixie Classic Fair. Between that time and 10:30 p.m. each 'had consumed ¡three beers and had taken three “medium” .drinks directly from the bottle of vodka. They shared the vodka with a third person to whom, .they gave the half emptied bottle when they left the fairground. Between midnight and 12:30 a.m. plaintiff and defendant went to a grill where each had a ¡sandwich. Shortly after 1:00 a.m. they were enroute .home .in defendant's ¡automobile, traveling north on Indiana Avenue. The speed limit for the area was thirty-five miles per -hour ¡and the automobile wais in good mechanical condition. Defendant drove .the automobile into a sharp curve to. the right ¡at a speed of about fifty miles per hour. Its right wheels went off on .the right shoulder of the road. The ¡defendant quickly turned the vehicle back onto the pavement where it skidded and ran off the left side of the -road, pushing over two trees and clipping a guy wire before coming to rest.

About thirty minutes after the accident an ambulance arrived and took plaintiff and the defendant to a hospital. Highway Patrolman Woods learned of the accident at 2:10 a.m. and went immediately to the scene where he examined the automobile which appeared to him to be a total loss. Later that night he interviewed the defendant at the emergency room of the Baptist Hospital. At the trial, the patro'kaan testified: “I do know that just as soon as I confronted him I could smell an alcoholic beverage; there was no doubt about what it was.”

*672PJa~jtiff tesb~fied that neither he nor the defendant had druink any alcoholic `beverages after 10:30 p.m. He stated that duiiin'g the eve-nñng the defend'ant had `comumed. as `much `cia `he had; that the effect of the vodka upon him "wa's still there to some ext~ent" when he left the Fair; that he had ridder, with the defendant when `he was quite sober and on those ocea~si'oniis ,deifeaijdarit had, never attempted to take that `curve at `any such rate `of speed. With reference to defendant's operation of the automobile, plaintiff testified: "(H) e wasn't reckless or nothing. I `mean I wasn't seared to ride with him `and I don't think aii~ilb'o,cLy else woutti ih'ave been."

Wh'e~bher a g'ue&t p'aiss'enge~ who ~o1un'~1y en~eiis aai. ton~o~b~1e being oipea'atied by a dn~iveT he kno~is hais beesi drinking ~imatoxirown~ts i~s gui1~by of conitribuboiy negligence is a matte~ to be detherrn'ined by the rules expounded in Dinkins v. Carlton, 255 N.C. 137, 120 S.E. 2d 543 and Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33. By those etan'd'ardjs, the foregotiaig evidence is clearly sufficient to require the euibmission of the question of plaintiff's' `contributory negligence to the juicy. In otrdea~ that it may be eulbmitted, there must be a

New t~i.a1.