Epitomized Opinion

Frederick and a friend were driving an automobile after night in a slight fog and he drove into the side of a railroad ear standing on the crossing. On the trial evidence was introduced to the effect that after collision there was broken glass of bottle formation in a depression in the car; also that there was a brown liquid which smelled and tasted like alcoholic liquor. This evidence was given to attempt to establish that Frederick was intoxicated. The car was equipped with lights that lighted the road for seventy-five feet.

Held:

1. It was not error to admit evidence of liquor in car after accident, as tending to show intoxication of Frederick at the time the accident occurred; the fact may 'be so shown as an incidental fact, tending to establish contributory negligence.

2. Where one who has every opportunity to see and does not use the opportunity, is guilty of contributory negligence.