¶1dissenting:
¶2The plaintiff first had the burden of offering evidence sufficient to justify a finding by the jury that defendant Hubbard was the driver of the automobile at the time of the collision.
¶3The majority, in summary, listed four facts which it concluded were sufficient to permit the jury to find that Hubbard was the driver. The first listed fact is that “(1) approximately fifteen minutes before and six to eight miles from the scene of the collision, defendant Hubbard was observed driving the car, with Beverly Jones in the front passenger seat on the right side . . . .” Trooper Byrd who investigated the accident, testified that it occurred about 7:30 p.m. Harland Jones testified that the car left the grill around 7:00 or a quarter after. This fact alone is not sufficient to support a jury finding, and in my opinion the other three listed facts are not sufficient to raise a logical inference that Hubbard was driving when considered with the other circumstances, including the facts that Beverly Jones was taking driver training; that the vehicle traveled off the pavement and into a ditch, went over an embankment, flipped over, and landed fifteen feet below in a rocky stream. These circumstances support the testimony of the other two occupants that Beverly Jones, an *48inexperienced driver, lost control while operating the automobile, and the positions of the bodies in the vehicles after the collision do not support plaintiffs claim.
¶4In my opinion the evidence was sufficient to raise only speculation or conjecture that Hubbard was operating the automobile.
¶5I vote to affirm.