concurring. I concur with the majority, but would like to add that, in my view, the result reached today does not preclude a trial court, in applying comparative negligence principles, under appropriate facts, not here involved, from directing a verdict or entering a judgment notwithstanding the verdict. Had there been further evidence in the case sub judice of Osier’s lack of control over his actions and his automobile, e.g., that he stumbled into his car, or drove it over curbs left of center or through stop signs or stop lights, or drove swervingly down the road, or any other series of events demonstrating intoxication to the point of debilitation, the trial court would have acted properly in finding Osier more than fifty percent negligent as a matter of law, thus denying him any recovery under R.C. 2315.19. Accordingly, it was stated in Junge v. Brothers (1985), 16 Ohio St. 3d 1, 4: “Although circumstances could arise under which a directed verdict would be appropriate in a comparative negligence situation, the facts of the case at bar are irreconcilable with that conclusion.” The same holds true as to judgments notwithstanding the verdict, since the same test is used in ruling on those motions as for ruling on motions for directed verdicts. Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St. 2d 271, 275 [74 O.O.2d 427].
Here, the only evidence of intoxication was that Osier had a blood-alcohol percentage of .141 some two hours after the accident. The only evidence relative to Osier’s driving was that he was driving at a. speed greater than the posted speed limit of fifty m.p.h. just before he reached the curve on State Route 58, and that when Osier’s automobile hit the bump, his car went out of control, struck a utility pole and rolled down an embankment. Upon a review of the record, I agree that this evidence, in addition to the testimony that Osier had no speech or walking difficulties upon leaving the party, supports the court of appeals’ and our conclusion that the trial court’s judgment notwithstanding the jury verdict, finding Osier more than fifty percent negligent as a matter of law, was inappropriate.
I further concur with the holding here that, based upon all of the evidence within the record, the trial court did not abuse its discretion in finding that the verdict of the jury was against the manifest weight of the evidence, and ordering a new trial.