dissenting.
I believe there was sufficient evidence to support the defenses of assumption of risk and contributory negligence and therefore would affirm the judgment below.
In reaching its conclusion, the majority summarily eliminates the so-called “collateral issue” of the admissibility of evidence of Strike’s blood alcohol level. This evidence was crucial to the success of Russillo’s defenses. In my view, that evidence was relevant, properly admitted in support of both defenses, and should not be dodged by the majority in its disposition of the case.
A state toxicologist called by Russillo testified that Strike had a blood alcohol content of 0.09 percent at the time of his death. While recognizing that the percentage is below the statutory presumption of intoxication, see Code § 18.2-269, the toxicologist stated “there would be definite decreases of mental... and physical capabilities at .09 percent.” Thus, if Strike, realizing that Russillo was driving recklessly, saw the danger, appreciated it, and failed to give warning, if there was time to do so, he was contributorily negligent. “The fact that [Strike’s] ability to use due care for [his] own safety may have been influenced by the voluntary consumption of alcohol will not excuse [him] from its consequences.” Major v. Hoppe, 209 Va. 193, 200, 163 S.E.2d 164, 169 (1968). The testimony of the toxicologist tended to prove the degree of Strike’s ability to assess the danger, if he observed it, and his ability to give timely warning, if there was an opportunity to do so, and was admissible for that purpose.
Likewise, regarding assumption of risk, the test result was relevant to show that Strike’s consumption of alcohol affected his decision voluntarily to remain in the car and continue the joyride. *336The jury was entitled to consider whether Strike’s euphoria, fuelled by a mixture of brandy and champagne, made him more prone to be adventurous and to ride with Russillo when, if in full control of his ability to assess danger, he probably would have decided to stay out of the vehicle.
By ducking the blood-test issue, the majority is able to focus only on “who was driving.” But this is merely one ingredient of the total circumstances surrounding the fatal crash, and should not be relied upon to the exclusion of other relevant facts.
Strike was responsible for setting the events in motion on the night of the accident. It was Strike who procured the bottle of brandy from his parents’ “liquor cabinet.” It was Strike who packed a cooler with ice and placed it in the back of the car. It was Strike who retrieved the champagne from its hiding place along the road near his home. And, of course, it was Strike who provided his own automobile for the joyride. Strike drove erratically when he resumed driving after having allowed Russillo to drive for “quite awhile.” Said Russillo: “He put two of the wheels on somebody’s lawn, and that hit me as unusual, because I had never known him to drive like that.”
This evidence establishes that Strike initiated a course of conduct for Russillo to follow. That course began with the procurement of alcoholic beverages. It continued when Strike allowed Russillo to drive the vehicle. And, it assumed dangerous and later fatal proportions when the vehicle was put through at least two sequences of skidding and speeding. In sum, Strike became the victim of his own careless and venturesome conduct. Manifestly, jury issues were presented on both assumption of risk and contributory negligence. Monk v. Hess, 213 Va. 244, 191 S.E.2d 229 (1972); Budzinski v. Harris, 213 Va. 107, 189 S.E.2d 372 (1972).
There is another aspect of the majority’s decision that troubles me. The proposition that the defendant was guilty of primary negligence which was a proximate cause of the collision has not been disputed on appeal. Yet, the case is being reversed because of lack of evidence to support the defenses and “for further proceedings.” The only proceedings possible will be on the questions of primary negligence and proximate cause (issues already finally adjudicated) and damages. This is a rather odd result. If I agreed with the majority on the merits of the appeal, I would hold that de*337fendant’s liability has been fixed and would remand the case for a trial on the issue of damages only.
COCHRAN AND POFF, JJ., join in dissent.