Can a defendant driver be found guilty of contributory negligence in a motor vehicle accident?

[236 Cal.App.2d 77] Contributory negligence on the part of plaintiff-guest may be inferred from the fact that plaintiff had been in the company of defendant-driver for several hours immediately preceding the accident and knew that defendant had been drinking intoxicating liquor during that time. (Pennix v. Winton, 61 Cal.App.2d 761, 763, 143 P.2d 940, 145 P.2d 561.)

Nevertheless, whether plaintiff was guilty of contributory negligence is essentially a question of fact for the determination of the jury. (Pennix v. Winton, supra, 61 Cal.App.2d 761, 763, 143 P.2d 940, 145 P.2d 561.)

In Pennix v. Winton, supra, judgment for defendant-driver was reversed because of the misconduct of defendant's counsel. The reversal would have been uncalled for

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Appellant assigns as error the court's refusal to instruct the jury as follows: