(dissenting) — The majority says that the crucial issue is whether or not instruction No. 19 should have been given. That instruction was as follows:
“If you find that the plaintiff, Mabel Mueller, voluntarily rode in a car driven by one who was under the influence of or affected by intoxicating liquor after plaintiff, Mabel Muél-ler, knew, or in the exercise of reasonable care should have known, the driver’s condition, and if you find that a person exercising reasonable care would not have done so and plaintiff suffered injury as a proximate result of the condition of the driver, you will find the plaintiff, Mabel Mueller, guilty of contributory negligence.”
Jurors are not required to reason in the rarefied judicial atmosphere of pure logic. They, apparently, are taking a dim view of the situation when women, out for an afternoon of drinking and driving, get involved in collisions. See Shaw v. Browning (1961), 59 Wn. (2d) 133, 367 P. (2d) 17.
Of course, no one testified that the women involved in this case were out for an afternoon of drinking along with their driving; however, a jury might infer that beer was purchased for the purpose of drinking, even though the testimony was that it had been purchased for the purpose of cashing a check. A jury might also infer that, since a bucket and ice were acquired by the women to cool the beer, they drank the beer thus cooled on that hot afternoon. There may have been other reasons for cooling the beer, but no one has suggested what they were.
The legislature has said that,
“It is unlawful for any person who is under the influence of or affected by the use of intoxicating liquor . ; . to drive or be in actual physical control of any vehicle.upon the public highways.” RCW 46.56.010
*557My position, that there is a distinction between intoxication and being “under the influence of or affected by the use of intoxicating liquor,” is based upon our analysis of the quoted phrase in State v. Hurd (1940), 5 Wn. (2d) 308, 316, 105 P. (2d) 59. We there said:
“We are therefore of the opinion, and now hold, that the phrases ‘under the influence of’ and ‘affected by,’ as employed in the statute, have the same significance, import, and breadth of meaning.”1
To justify this holding, we there pointed out that “under the influence of intoxicating liquor” has been defined as any influence which lessens in any appreciable degree the ability of the driver to handle his automobile and the lessening, in the slightest or any degree, of his ability to operate a vehicle. In Schalow v. Oakley (1943), 18 Wn. (2d) 347, 357, 139 P. (2d) 296, we said:
“State v. Hurd is cited to show that, in construing a criminal statute, this court held that the phrases ‘affected by the use of intoxicating liquor’ and ‘under the influence of intoxicating liquor’ mean the same thing, and that the offense is made out, if it be proven that, on account of the use of intoxicating liquor, the accused’s ability to operate a motor vehicle was lessened in the slightest degree.”
It seems to me that intoxication implies something more than the lessening, in the slightest degree, of the ability to operate a vehicle. This could involve nothing more than the slowing of reaction time by a fifth of a second. However, I do not base this dissent on semantics.
The trial court used the language of the statute in the *558instruction, which the majority finds to be erroneous. To so hold, the majority must find that there was no question for the jury on whether Mrs. Madill was “under the influence of or affected by the use of intoxicating liquor,” and whether, if she was, Mabel Mueller should have known it. That Mrs. Madill had consumed some intoxicating liquor is conceded. The majority make some point of the fact that the conceded drinking was 67 miles from the point of the collision. The effects of the alcohol would be measured in time, not miles. Mrs. Madill testified that she was driving about 55 miles an hour, but sometimes reached 60; and this would put the conceded ingestion of the alcoholic beverage an hour and a quarter before the collision. Whether Mrs. Madill had used enough of the beer to be under its influence or affected by it, and whether, if she was so influenced or affected by it, Mrs. Mueller should have known it, seem to me to be jury questions. Consequently, I dissent from the holding that it was error to give instruction No. 19 and would affirm the judgment.
Ott, C. J., concurs with Hill, J.
September 16, 1964. Petition for rehearing denied.
Laws of 1927, chapter 309, § 51, p. 811, made it unlawful “. . . to operate a motor vehicle upon the highways of this state while under the influence of intoxicating liquor ...”
Laws of 1937, chapter 189, § 119, p. 910, made it unlawful “. . . to operate any vehicle upon the public highways of this state while under the influence of or affected by the use of intoxicating liquor . . . ” (Italics mine.)
Contrary to our usual rule of giving meaning to added words, we have held, as indicated above, that the two phrases mean the same thing.
The change made in 1937 continues through the latest enactment in 1961.