#### BARBARA FLIPPIN KING v. ROBERT LEE MOORE and JOE WILLIE MOORE.

(Filed 11 December 1963.)

Appeal by plaintiff from *Shaw, J.,*25 March 1963 Civil Session of SurRY.

Civil 'action to recover damages for personal injuries allegedly caused by the 'actionable negligence of defendant Robert Lee Moore in the operation oif a family-purpose automobile owned by inis father, the defendant Joe Willie Moore, he, the said Robert Lee Moore at the time ■residing in the 'home of bis father as a member of his family.

Defendants filed a joint answer in which they admit that title to the automobile, which was driven by Robert Lee Moore, was registered in the name of Joe Willie Moore, and that he was driving the automobile at the time plaintiff was injured with the permission, of his father, but deny that Joe Willie Moore kept and' maintained the automobile a,s a family-purpose automobile and that Robert Lee Moore was negligent in the operation of the automobile. A® a further defense and bar to 'any recovery by plaintiff, defendants conditionally plead contributory negligence of plaintiff in that lafter an all-night dance she entered -as a passenger an automobile 'driven by Robert Lee Moore, when she well knew he bad been drinking intoxicating liquor .to the extent that bis physical and mental ability to operate 'an automobile bad been substantially impaired, and .further when She well knew he bad been without sleep for 36 hours, which also- affected hie ability to drive; and that during the night he had been driving at speeds of 65 to 70 miles 'an hour without protest on 'her part; that she voluntarily remained in this automobile while it was being so> operated though' she had ample opportunity to get out of the automobile; that this condition of Robert Lee Moore and his driving at excessive speed were the proximate causes of the automobile leaving the highway and of plaintiff’s injuries, and that plaintiff’s continuing under such circumstances to ride in -the automobile when' she had ample opportunity to get out was negligence on her part which proximately contributed to her injuries.

The parties offered evidence in support of the allegations in their pleadings.

The following issues were submitted to the jury and answered as shown:

“1. Was the plaintiff injured by reason of the negligence of the defendant Robert Lee Moore, as alleged in the plaintiff’s complaint?

*681“ANSWER: Yes.

“2. Was the defendant Joe Willie Moore the owner of the 1955 Chevrolet automobile driven by the defendant Robert Lee Moore on June 18,1961, which was involved in this collision; did he keep ■and maintain it for the use and convenience of members oif his family; and wa® the defendant Robert Lee Moore operating the automobile at the time of the collision within the scope of such purpose?

“ANSWER: Yes.

“3. Did the plaintiff by her negligence contribute to her injuries?

“ANSWER: Yes.

“4. What amount of damages, if any, is the plaintiff entitled to recover of the defendants?

“ANSWER: .”

From a judgment that plaintiff recover nothing from defendants and taxing her with the costs, she appeals.

*Blalock & Swanson and C. Orville Light for plaintiff appellant.*

*Deal, Hutchins and Minor by John W. Minor for defendant ap-pellees.*

PER Cueiam.

The jury, under .application of well-settled principles of law, resolved the first two issues of fact in plaintiff’s favor, and the third issue oif fact against her. A careful examination of the assignments of error in respect to the admission of evidence and in respect to the charge, particularly as to the third issue, discloses no new questions or feature requiring extended discussion. Prejudicial error hats not been made to appear. The verdict and judgment will be upheld.

No error.