¶1(concurring).
¶2I concur with the majority opinion herein, but I do not feel that it goes far enough. I believe that the case of Jeffery v. Ray, Ky., 406 S.W.2d 838 should be overruled. Starting with the case of Archer v. Bourne, 222 Ky. 268, 300 S.W. 604, which was decided in 1927, this court has uniformly held in a long line of cases that when the passenger drinks with the driver, who is later involved in a collision, the passenger is guilty of contributory negligence as a matter of law. These cases are: Irby v. Williams, 313 Ky. 353, 231 S.W.2d 1; Lewis v. Perkins, 313 Ky. 847, 233 S.W.2d 984; Kavanaugh v. Myers’ Adm’x, Ky., 246 S.W.2d 451; and Smith’s Adm’r v. Smith, Ky., 269 S.W.2d 260.
¶3The only departure from this rule is to be found in the Jeffery case. The majority opinion herein makes some attempt to distinguish the present case from the Jeffery case, when the only distinction that logically exists is that in the Jeffery case the driver consumed four beers whereas in the instant case he consumed five or six beers. Is this court to be placed in a position of holding that one is guilty of contributory negligence when he rides with a driver who has consumed five beers, but not negligent when he rides with one who has consumed only four. Apparently this is the position which we now occupy.
¶4When a passenger drinks with the driver and a collision ensues it is my opinion he is negligent as a matter of law. It is futile and foolish for this court to stand at the bar with these people and try to guess at what point in the drinking schedule negligence sets in.
¶5It is, therefore, my opinion that the Jeffery case was wrong and should be overruled.
¶6HILL and MONTGOMERY, JJ., join.