#### GEORGIA ANN WITHERSPOON v. FRED FLOWERS, Administrator of the Estate of CHARLES LEE HOPPER.

(Filed 27 September, 1967.)

Appeal by defendant from McLean, J., February 1967 Civil Session, CLEVELAND Superior Court.

The plaintiff instituted this civil action against the personal representative of Charles Lee Hopper to recover damages for injuries she sustained in an automobile accident which occurred in Shelby on July 4, 1965.

The evidence favorable to the plaintiff tended to show she was one of four passengers in a Chevrolet automobile which defendant’s intestate was driving at 75 m. p. h. when he lost control of the vehicle, crashed into a tree, killing himself and two of the passengers. The plaintiff and the other passenger were seriously injured.

*467■ The defendant, by answer, denied negligence on, the part of his intestate and conditionally pleaded the intoxication of the driver and all passengers in his automobile; that the plaintiff, by riding with him, knowing of his condition, was contributorily negligent and her conduct is a legal bar to her right to recovery.

The plaintiff introduced evidence tending to support the issues of negligence, injury, and damages. Her hospital and medical bills were approximately $1700. The defendant introduced evidence tending to support the issue of contributory negligence. The jury answered all issues in favor of the plaintiff and awarded her $3500.

Frank Patton Cooke for defendant appellant.

Horn, West & Horn by J. A. West for plaintiff appellee.

Per Curiam.

The plaintiff’s evidence was sufficient to carry the ease to the jury on the issues of the actionable negligence of defendant’s intestate and the plaintiff’s damages as a result thereof. The burden of proof on the contributory negligence issue was on the defendant. The jury found he did not carry that burden. The record fails to disclose any error of law in the trial.

No error.