(dissenting).
The opinion of the majority of the court is that they are “unwilling to hold as a matter of law that any time a passenger participates in drinking with the driver, regardless of the proof of extent of intoxication, the passenger is guilty of contributory negligence.” In view of the facts of this case, I cannot agree with the majority opinion. The facts are that the driver of this car had been without sleep for approximately forty-eight hours, had consumed almost four beers, and was driving in excess of 100 miles per hour when his car struck the City Hall in Hazel, Kentucky. Under these circumstances it seems to me that the passengers, who had been with him for a period of approximately four hours prior to the accident, should have observed and should have known his condition, and, therefore, were contributorily negligent as a matter of law.
HILL, J., joins in this dissent.