“Whether a person who takes passage in an automobile as an invitee or gratuitous passenger and continues to ride therein until an injury happens is guilty of contributory negligence or want of ordinary care by reason of the fact that the driver of the automobile has been drinking an intox- . icant, is generally a question for decision by a jury. A verdict will be set aside . . . only when it is plainly and indisputably contrary to the evidence. West v. Rosenberg, 44 Ga. App. 211 (160 SE 808); Smeltzer v. Atlanta Coach Co., 49 Ga. App. 755 (176 SE 846).” Britt v. Davis, 53 Ga. App. 783 (187 SE 125). “If a driver, from intoxication, is in a condition which renders him incapable of operating it [an automobile] with proper diligence and skill, and this is known or palpably apparent to one entering the-car, this is a fact which may be proved for the consideration of the jury, along with other facts, to throw light on the question of whether such person exercised ordinary care in entering the car or in remaining in the car, or in reference to his conduct while in it.” Powell v. Berry, 145 Ga. 696, 700 (89 SE 753, LRA 1917A 306).
It follows, therefore, that mere knowledge on the part of a passenger that the driver is under the influence of intoxicating beverages is not, as a matter of law, knowledge that such person is so much under the influence of intoxicants as not to be able to drive safely or with ordinary efficiency so as to make the passenger guilty of such lack of ordinary care for his own safety, or assumption of risk, as will bar a recovery against the driver for injuries occasioned by the driver’s gross negligence.
The case of Stephenson v. Whiten, 91 Ga. App. 110 (85 SE2d 165) is not authority for a ruling to the contrary. In that case *341the court ruled that a petition which alleges that the defendant was driving while under the influence of intoxicating liquors did not, on demurrer, require a conclusion that the plaintiff knew of the intoxication at the time she entered the automobile. In the opinion (p. 112), the court said, “If one rides with a driver of a motor vehicle knowing that the driver is under the influence of any intoxicating liquors, he is not in the exercise of ordinary care for his own safety. Williams v. Owens, 85 Ga. App. 549 (69 SE2d 787)”; and immediately thereafter, “The petition for recovery in this case did not affirmatively allege that the plaintiff knew that the defendant was under the influence of an intoxicant, nor did the petition allege facts from which it must necessarily be inferred that the plaintiff had ascertained that the defendant had imbibed to such an extent she could not safely operate the automobile, until after the wreck resulting in the plaintiff’s injuries had occurred.
“If the circumstances of the case, as revealed by the allegations of a petition, are so conclusive that a person of ordinary intelligence must be inferred to have been cognizant of the fact that another with whom he rode in an automobile was so intoxicated as to be incapable of driving, the petition is subject to general demurrer. But in this case, as in Evans v. Caldwell, 45 Ga. App. 193 (163 SE 920), the facts alleged cannot be held so conclusive of the plaintiff’s knowledge that the defendant was intoxicated or so much under the influence of intoxicants as not to be able to drive with ordinary efficiency.” The part first quoted, including the citation of the case of Williams v. Owens, 85 Ga. App. 549 (69 SE2d 787), was quoted in Staples v. Brown, 96 Ga. App. 176, 178 (99 SE2d 526). While the language preceding the citation of the case of Williams v. Owens, seems to support a contrary ruling, an examination of that case discloses that it does not support such a ruling, that is, that one riding with a driver of a vehicle knowing the driver is under the influence of intoxicating liquors, is by reason of that fact alone not in the exercise of ordinary care for his own safety. In the Williams v. Owens case, a petition which alleged that the plaintiff knew the defendant was drinking and knew that he was in no condition to dñve (emphasis ours) was held subject *342to demurrer in that it showed the plaintiff did not exercise ordinary care for her own safety. In the opinion, the court, in distinguishing the case of Evans v. Caldwell, 45 Ga. App. 193 (163 SE 920), called attention to the facts in that case and in reference to them said, “On the trial of the case, the plaintiff testified that, after he first got into the car, he thought the defendant had had a drink, and that this- was what he had meant in his pleading when he had pleaded that the defendant was ‘intoxicated,’ and that, when he alleged that the defendant ‘had poor muscular control,’ he meant that the defendant could have driven all right if he had not driven so fast. The jury were authorized to find from the evidence in that case that, while the plaintiff knew the defendant had had a drink, he did not know that the defendant was too intoxicated to drive safely.” It appears, therefore, that the case of Williams v. Owens, 85 Ga. App. 549, supra, rather than sustaining the statement made in Stephenson v. Whiten, 91 Ga. App. 110, supra, and cited with approval in Staples v. Brown, 96 Ga. App. 176, supra, sustains instead the ruling made in the instant case.
Further, the case of Stephenson v. Whiten, 91 Ga. App. 110, supra, was not decided upon the principle stated and for which the case of Williams v. Owens, 85 Ga. App. 549, supra, was cited as authority. The case of Staples v. Brown, 96 Ga. App. 176, supra, is distinguishable on its facts from the present case. In that case it appeared not only that the plaintiff knew the defendant was under the influence of intoxicating liquors, but also knew he was “not driving properly.” See Pettigrew v. Branch, 101 Ga. App. 534, 537 (114 SE2d 391). Riding with a driver of an automobile, knowing that he is drinking and that he is driving in excess of the legal speed limit, does not as a matter of law amount to lack of ordinary care on the part of a guest passenger. Evans v. Caldwell, 45 Ga. App. 193, supra; Evans v. Caldwell, 52 Ga. App. 475, 476 (184 SE 440). See also Mann v. Harmon, 62 Ga. App. 231 (8 SE2d 549).
The facts here are not those upon which a sense of conscience, justice and fairness would ordinarily lead to the awarding of damages, but neither were they in those cases. That problem rests not with this court but with the jury. It is no concern *343of the appellate court what verdict was rendered if it is authorized under the law and the evidence. It cannot be said that the verdict here was not authorized under the law as declared in the cases of Evans v. Caldwell, 45 Ga. App. 193, supra, Evans v. Caldwell, 52 Ga. App. 475, 476, supra, Mann v. Harmon, 62 Ga. App. 231, supra, Britt v. Davis, 53 Ga. App. 783, supra, and Powell v. Berry, 145 Ga. 696, 700, supra, when applied to the evidence adduced upon the trial.
It follows, therefore, that the trial judge, in the case before this court, did not err in overruling the motion for judgment notwithstanding the verdict and the motion for new trial on the general grounds only.
Judgment affirmed.
Bell, P. J., Hall and Bussell, JJ., concur. Nichols, P. J., concurs specially. Felton, C. J., Frankum, Jordan and Eberhardt, JJ., dissent.