These cases arose from a collision between automobiles in which persons riding in both cars were injured, and a third automobile was damaged by broken glass from the colliding cars. Evidence was introduced without objection and was argued by opposing counsel from which it could have been found that the course of one of the automobiles before the impact was so- erratic that it justified a belief that the driver was intoxicated. There was evidence also that, when the driver fell from his *78position near the driving post after the accident, a pint flask slipped down over his breast and body into a pool of blood forming on the road. This bottle was nearly empty but contained a few drops of a brown liquid which looked like whiskey. Somewhat later the cork was extracted and an odor of alcohol was perceived. This bottle was produced at the trial. A witness testified that he saw another similar bottle in the road about half way between the two cars after they had come to rest. This was full of a fluid of a similar color with the drops remaining in the first. Before the witness could pick it up it was broken by a passing automobile; but the neck and stopper remained. The witness put his fingers in the spilled liquid which looked like and “smelled whiskey.” There was evidence tending to show that no bottle fell with the body; that no full flask lay in the road; that no odor of alcoholic liquor was observed on this driver’s breath or at the hospital whither he was taken; and that he had not been drinking intoxicating liquor before the accident.
The trial judge charged: “There isn’t any evidence in this case that . . . [this driver] was intoxicated. There isn’t any evidence in this case that he had been consuming liquor.” Counsel for William F. and Annie M. Whiting called the attention of the judge to these statements and suggested modification. The judge stated to opposing counsel: “You can determine whether you will let the charge stand on the rum question as it now is or that . . . [counsel’s] instructions be given.” The interrogated counsel stated that he was satisfied to leave it, and no change was made. Exception was saved.
We think the excepting parties were entitled to have other and accurate instructions given. The charge as it stood was wrong. There was more here than inference upon inference, which would not support a finding of fact. If the jurors believed, the witnesses who described the course of the colliding car before the impact, and those who testified to the flasks and their contents, they had the facts of the presence of liquor, of behavior consistent with the effects of using it and inconsistent with the absence of its *79use, and of a course of action readily explicable if the driver were affected by intoxicating liquor, although admitting of other explanations. From these facts, if they found them, they could infer legitimately that this driver had consumed liquor and had been to some extent intoxicated. It could not properly be stated, as matter of law, that there was no evidence of intoxication and of consumption of liquor.
The exception was well taken. Although no request for instruction had been made before the charge, the parties were entitled to adequate and accurate statement of the law for the guidance of the jury. The attention of the judge was called to an asserted inaccuracy. The parties affected by failure to correct it are entitled to the exception, which the judge properly saved to them. Mahoney v. Gooch, 246 Mass. 567, 571. We cannot properly say that the error was immaterial. Had the jurors felt that they could find intoxication, it might seriously have affected their decision.
Exceptions sustained.