This section contains the nature of the case and procedural background.

Leslie Robinson Wright, a guest passenger in an automobile operated by D, was fatally injured when the vehicle ran off the road and struck a tree. P, the Administrator of the estate of Leslie Robinson Wright, brought an action against D to recover damages for the wrongful death of Leslie. On the afternoon of July 18, 1964, Leslie and five of his friends, namely: Latha Spangler, Jimmy Spangler, Kermit Gussler, Gary Carroll, and D, met at Blankenship's store. It was decided that they would drive to a restaurant and purchase some beer. The group got into D's automobile, and he proceeded to drive them to the restaurant. D was under the influence of intoxicants at the time the group left. It was obvious that D had been drinking, and he was 'high.' D operated the car at an excessive speed, and 'about everybody said something' to him about the manner in which he was driving. D's driving was 'reckless' because he was 'taking the inside on turns; taking unnecessary chances.' Both Gussler and Carroll stated that they were 'scared.' Upon arrival at the restaurant, two cartons of beer were purchased. Gussler asked permission to drive on the return trip because of D's condition and the reckless manner in which he had operated the vehicle. Gussler then made an unsuccessful attempt to have the group 'hitchhike' with him rather than ride in the automobile. Leslie told Gussler that he thought he (Gussler) 'ought to drive back.' The group left the mountain in the car. D continued to drive in a reckless manner. On the way, some of the beer was opened, and it was found to be frozen and undrinkable. D then 'asked the boys for a drink of liquor, and they said they didn't have any, and D said, 'Give me a drink, or I'll kill you.' And the boys said, 'Well, I'll give you a drink if you'll slow down some.' And they handed it up to him.' D drank some of the whiskey. The group stopped at the home of Latha Spangler, 'to put some water in the car because it was hot.' There, Gussler again asked the occupants to 'hitchhike' back home, but none agreed. D continued to drive in a reckless manner, and the accident occurred. Leslie and one of the Spangler boys died as a result of the accident. The other occupants of the car received severe injuries. Leslie was 22 years old at the time of his death and resided with and supported his parents. Leslie dropped out of school in the fifth or sixth grade and worked as a farm laborer. He could 'read and write' but was slow and mentally deficient. Leslie was not 'mentally capable. You'd tell him to do something, and then he would be off on something else, and you couldn't have him around machinery. D moved to strike P's evidence and enter summary judgment for him on the grounds that the evidence showed, as a matter of law, that P's decedent was guilty of contributory negligence and that he also assumed the risk, which in either event barred a recovery. The court gave instructions so as to allow the jury to find for P, notwithstanding his decedent's contributory negligence or assumption of risk, if the decedent 'lacked the mental capacity and alertness of mind to recognize danger or peril and to appraise the manner in which Homer Neal Wright was operating said automobile.' P got the verdict, and D appealed.

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