dissenting.
Spratley, J., dissenting.
Considering the undisputed facts in this case, the decision of the court seems to me to be unrealistic. It has placed undue emphasis on the question whether Gordon Bates was under the influence of intoxicants while operating his car, and has failed to give consideration to vital and important facts concerning the conduct of Gordon Bates and his brother, Ellis, regardless of whether Gordon had partaken of enough alcoholic beverages to affect his behavior.
The defendant’s answer set out the following grounds of defense:
“That plaintiff’s intestate was guilty of negligence which proximately caused or contributed to bring about the situation resulting in *507his death, in that if Gordon Bates was the operator of the automobile in question, plaintiff’s intestate continued to ride in the automobile in which he was subsequently killed, after knowing that said automobile had been, and was being, driven in a reckless and dangerous manner and after ample opportunity had been offered plaintiff’s intestate to leave the automobile, if he so chose, and still further, both occupants of the Bates automobile were engaged in drinking intoxicating beverages and each assumed the risk of riding with the other.”
One does not have to be drunk, or under the influence of intoxicants, to operate a car in a careless and reckless manner. It is all too true that persons wholly free from such influence are often guilty of unlawful driving. Moreover, a small amount of intoxicants may be more dangerous for a driver in exciting his emotions and dufling his sense of responsibility than an amount sufficient to cause stupor.
In addition to the facts recited by the Court, I think that the following are of prime importance:
Ellis was 18 years of age. He had registered for military service under the U. S. Selective Service Act. He was intelligent and mature enough to leave home and obtain work. He had been employed for two or three months as a bellboy at the “Hunt Club,” a hotel-motel near Washington, D. C. He was present in the car of his brother when he was halted 60 miles from the scene of its collision by Trooper Talbert for driving 70 miles per hour in a 50-mile zone. He and his brother then got out of the car, and talked with Talbert for several minutes while a summons for speeding was being prepared by the trooper.
Talbert said of Gordon that the “odor of intoxicants was definitely on his breath,” and that he was “very talkative,” especially about “personal difficulties with his family.” Ellis heard the conversation between the officer and his brother, saw his brother given the summons to appear before a justice of the peace, and heard the officer warn Gordon that he should be more cautious in his driving, saying he had “no desire to have to clean him up off the highway.” The officer further said that outside of being very talkative, Gordon “didn’t give any indication to me of being red drunk, just the odor and the fact that he was very talkative.” (Emphasis added.)
Gordon then drove to the police dispatcher’s office in Lexington, where he met Andrew Wilhelm, a police clerk. Wilhelm said that *508during his conversation with Gordon: “I was close enough to smell his breath,, between the counter and me, and I did smell alcohol on his breath,” and that “He was very unsteady on his feet.” When bond was refused Gordon and he was told that he would have to return to Lexington for his trial, he said “Somebody is going to catch hell for this.”
On leaving Lexington, Gordon drove to Covington. Officer Vance of the police department of Covington said that sometime shortly after- 7:00 p. m., he observed Gordon’s car coming up the street “making a rocking noise, up and down movements, and every time the car would rock up, there would be a slight crying of the tires.” The officer was on foot and attempted to stop the car but it ran by him, but had to stop at a red light further on. Vance then caught up with the car, and checked Gordon’s registration and driving permit. Said he: “I detected alcohol on his breath; but his appearance otherwise seemed almost normal. I gave the guy a warning and asked him what his excuse was for driving in that manner. Mr. Bates said: Well, this is my hometown. I have been in the Army for two or three years and am just getting home. You know how it is.’ ” Vance then warned him not to drive too fast and allowed him to proceed; and Gordon, after stopping for another red light, “apparently ignored what I had told him and he left there and his car was going at a high rate of speed, the tires crying all the way up to the bridge at Rosedale, heading west.” On cross-examination, he said, referring to Gordon’s car, “He had that Buick in the wind.”
It might also be noted that H. R. Crush, a State Trooper, who examined the Bates car after the accident, said that he found “a broken whiskey bottle in it.” Cecil Bates, the father of Gordon, said that he saw the broken whiskey bottle in the car a day or two after the accident, and that, “There was a strong odor of whiskey in the car.
Now, we have a situation where Ellis, sitting in the car beside his brother, smelled, or must have smelled the odor of alcohol on Gordon’s breath two hours prior to the accident, and noted, or should have noted, that he had been twice stopped for operating his automobile in a careless and unlawful manner. It is conceded that Gordon was guilty of gross negligence and no person had a better opportunity to observe his conduct than Ellis. He saw and heard what took place between Gordon and two police officers. While he was not present in the office of the police clerk in Lexing*509ton, he was with his brother immediately before and after the latter went to that office. It is clear and undisputed that he had three opportunities to leave his brother’s car; one at the time of the arrest by Trooper Talbert, again at Lexington, and the third time at Covington. His conduct in not leaving the car can be only explained by the assumption that he was anxious to go to his parents’ home, and that accompanying his brother was the only feasible and available mode open to him. He was a voluntary passenger, however, and regardless of the actions of Gordon, he chose to remain in the car and to assume the risk and hazards inevitably connected with that course.
It is a reflection on the intelligence of Ellis to believe that he did not have sufficient mentality to observe and know the conduct and mood of his brother. It is conceded that Gordon was guilty of gross negligence, and the facts show that such negligence was begun more than two hours before the accident occurred. The evidence seems to me to establish the inescapable fact that Gordon operated his car in such a grossly careless and reckless manner that Ellis was bound to have observed it.
Whether or not Gordon was operating the car under the influence of intoxicants was a question merely incidental to the controlling issue, and is important only in the sense that it may furnish an explanation for his conduct, and have given additional notice of his condition to his brother. On that question the testimony of Trooper Talbert, Clerk Wilhelm, and Officer Vance testified, without contradiction, that Gordon had the odor of intoxicants on his breath; that he did not appear to be “real drunk,” but was “very talkative;” that he was “very unsteady .on his feet;” that he drove his car in such a noisy manner as to attract notice; and that his disposition was brusque and offensive, all of which tended to show that Gordon had “drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation” that he was under the influence of intoxicants. Code, § 4-2 (14); Gardner v. Commonwealth, 195 Va. 945, 954, 81 S. E. 2d 614, 619.
One aware of peril must take reasonable precaution for his own safety. The law does not permit him to shut his eyes or ears to danger without assuming the consequences of his failure to exercise reasonable care.
It seems to me that the court has failed to properly consider the grounds of defense and to evaluate the evidence with the necessary *510implications arising therefrom. The controlling issue is not whether Gordon Bates was guilty of operating a motor car while under the influence of intoxicants, or whether Ellis Bates knew Gordon was in that condition; but whether or not Ellis voluntarily remained in the car after he knew, or should have known, that Gordon was operating it in such a manner as to endanger the lives of its occupants and other persons lawfully on the highway.
I agree with the trial judge that the evidence clearly shows that Ellis Bates was guilty of contributory negligence as a matter of law, and I would, therefore, aflirm the judgment of the trial court.
Miller, J., joins in this dissent.