dissenting. In my opinion the plaintiff’s own testimony demanded a finding that he failed to exercise ordinary care for his own safety and that the court should have granted defendant’s motion for a judgment notwithstanding the verdict. His testimony, being equivocal, contradictory and evasive, must be construed most strongly against him.
The entire event, culminating in the wreck and injury to the plaintiff while defendant was driving 80 miles per hour, was an adventurous orgy involving whiskey, women and roadhouses. One who embarks upon such a hazardous undertaking with a drinking companion and an automobile is not only failing to exercise ordinary care for his own safety but indeed has abandoned all care or concern for his safety.
As to the degree of the defendant’s intoxication, the plaintiff testified that between noon and about 5:30 on the afternoon prior to the wreck he and the defendant had two or three drinks of liquor at one place, a can of beer at another place and two or three more drinks before eating dinner. The plaintiff testified “I could tell there was a difference in him ... he appeared to be feeling pretty good. Well, I wouldn’t say we were dog drunk.” As to the manner of the defendant’s driving, the plaintiff testified that he had been driving around 75 or 80 miles per hour during the day and that he was going 80 miles per hour at the time he hit the barricade. The plaintiff testified that at no time did he protest the manner in which the defendant was *345driving and that just prior to the accident “he must have been going 80 miles per hour at least. I did not pay any attention to that barricade. I was lighting a cigarette.”
This evidence demanded a finding that the defendant was in a discernibly intoxicated condition, that plaintiff knew of this condition when he entered the defendant’s car, that he knew the defendant was driving in an improper and illegal manner, and that he made no protest whatsoever concerning either the defendant’s intoxicated condition or the manner in which he was operating his vehicle.
The evidence in this case relating to the failure of the plaintiff to exercise ordinary care for his own safety is much more favorable to the defendant than the facts presented in Staples v. Brown, 96 Ga. App. 176, supra, under which this court held that the defendant was entitled to a verdict non obstante veredicto. The facts in the Staples case, as recited by Judge Nichols in the opinion, showed that the plaintiff knew the defendant was drinking and under the influence before he got into the vehicle, knew the defendant was not driving properly before they traveled very far, and that though he intended to ask defendant to let him drive he never had the opportunity before the wreck occurred.
Every element of that case exists here, plus the uncontradicted testimony of the plaintiff that just prior to the wreck with defendant driving 80 miles per hour, he calmly lit a cigarette and made no effort in any manner to protest the manner and speed of defendant’s driving.
The cases of Evans v. Caldwell, 45 Ga. App. 193, supra, and Mann v. Harmon, 62 Ga. App. 231, supra, so strongly relied upon in the majority opinion, are clearly distinguishable on their facts. In the Evans case, the plaintiff asked the defendant to slow down and only re-entered the car after defendant's promise to drive more carefully. As to the defendant’s intoxication, the plaintiff testified “he seemed to have had something to drink.” This is a far cry from the facts in the instant case.
Again, in the Mann case, there was testimony that defendant’s drinking had not affected his driving, that plaintiff asked defendant to slow down and that “he then drove all right”; that after a stop plaintiff re-entered the vehicle and again protested *346when defendant reached an excessive speed just prior to the accident.
In both of the cases referred to above, the evidence of intoxication was much weaker than exists here, and the plaintiff was at least concerned enough with his own safety to protest to the defendant driver prior to the wreck. Such situations make it clearly within the province of the jury to determine whether or not the plaintiff was exercising ordinary care for his own safety.
In clear and palpable situations such as existed in the Staples case and such as exist in this case we can only hold that as a matter of law the plaintiff failed to exercise ordinary care for his own safety, thus barring his recovery. The judgment should be reversed.
I am authorized to say that Felton, C. J., Frankum and Eberhardt, JJ., concur in this dissent.