#### C. B. NETTLES v. RICHARD L. REA and J. H. REA, Guardian ad Litem of RICHARD L. REA.

(Filed 19 December, 1930.)

Highways B i — Evidence of negligence and contributory negligence held properly submitted to the jury in this case.

Where there is evidence that the plaintiff entered the car of the defendant knowing him to have been drinking', and after he had stated his intention to drive to a nearby city at an excessive rate of speed, and that the defendant attempted to take a curve on the dangerous road at a speed of about seventy miles an hour over the protest of plaintiff, and as a result overturned the ear and injured the plaintiff z’iding therein, there is evidence of wilful and wanton negligence on the part of the defendant, and the evidence is properly submitted to the jury on the issues of negligence, contributory negligence and damages.

Appeal by defendant from *Moore, J.,*at November Term, 1930, of BUNCOMBE. ■

Civil action to recover damages for an alleged personal injury, tried upon the usual issues of negligence, contributory negligence and damages, which resulted in a verdict and judgment for the plaintiff.

The plaintiff’s evidence tends to show — none was offered by the defendant — that on 9 February, 1930, the defendant invited plaintiff to go with him and two young ladies from Sylva to Asheville, a distance of between fifty and sixty miles, in his new Chrysler automobile. The de*45fendant bad driven from Asbeville tbat morning in fifty minutes, and be stated tbat be intended to drive back in thirty minutes. He bad taken at least two drinks during tbe day, wbieb fact was known to tbe plaintiff, as tbe plaintiff bad been drinking witb bim, but tbe defendant showed no signs of intoxication at tbe time tbey left Sylva.

It was very cold, and at tbe suggestion of tbe defendant, tbe three guests sat witb bim on tbe front seat, rather than use tbe rumble seat.

Plaintiff testified: Tbe defendant was driving and Miss Knoblauch sat next to bim. I was sitting on tbe outside and Miss Bolter was sitting-on Miss Knoblauch and me. He began driving a little faster than I thought safe on tbe road — tbat road is awful crooked and rough witb numerous curves. The further we got away from Sylva tbe faster be drove. Miss Bolter and I both protested about tbe speed be was driving, which was between seventy and eighty miles an hour. I wanted to cut tbe motor off and stop tbe car, so we could get out or slow down or something, but I bad no opportunity to do so. He wouldn’t listen to us about speed, but said be could drive all right. He approached this curve (indicating on map) at about seventy miles an hour — so fast tbat be was not able to take the curve. Tbe car ran over tbe embankment, turned and nosed up and down, threw Miss Bolter and me out, rolled over four or five times, went farther than from here to tbe end of tbe court room, and stopped witb wheels in air.

Tbe plaintiff sustained serious apd permanent injuries.

Motion to nonsuit; overruled; exception.

Judgment for plaintiff. Defendant appeals.

*Ellis G. J ones and Zeb F. Curtis for plaintiff.*

*Campbell & Sample for defendant.*

Stacy, C. J.,

after stating tbe case: Conceding, without deciding, tbat plaintiff may have been negligent in entering defendant’s car under tbe circumstances disclosed by tbe record, nevertheless there is evidence of wilful of wanton conduct on tbe part of tbe defendant in persisting in bis reckless driving over tbe protests of bis guests which resulted in .plaintiff’s injury. This, if nothing else, saves tbe case from a nonsuit. Notes, N. C. Law Review, December, 1930, p. 98; 61 A. L. R., 1253; 1 R. C. L. Sup., 614. See, also, *Teasley v. Burwell,*199 N. C., 18, 153 S. E., 601; *Albritton v. Hill*190 N. C., 429, 130 S. E., 5.

No error.