BENNETT v. WILBRO
12/21/1992
After reviewing the Petition for Rehearing in this case, it is ordered that the opinion heretofore filed be withdrawn and the attached opinion be substituted. The Petition for Rehearing is denied.
And it is so ordered.
Heard Aug. 25, 1992; Decided Dec. 21, 1992.
Refiled Jan. 19, 1993; Reh. Den. Jan. 19, 1993.
Brenda Bennett brought this
1. Bennett argues the court erred by allowing evidence showing Williams consumed alcohol and was under its influence prior to the accident. This argument is without merit. The admission and exclusion of evidence rests within the sound discretion of the trial judge, and the judge's decision will not be disturbed on appeal absent a clear showing of an abuse of discretion, the commission of legal error in its exercise, and prejudice. Blackwell v. Paccar, Inc., 302 S.C. 294, 395 S.E.2d 736 (Ct.App. 1990). In its defense, Wilbro asserted Williams was contributorily negligent. The evidence showing Williams was intoxicated was relevant to whether he contributed to his own injury . See Benchoff v. Morgan, 302 S.C. 116, 394 S.E.2d 19 (Ct.App. 1990). Contributory negligence
2. Bennett also argues the court erred by charging the jury on assumption of the risk. This argument is without merit. See Benchoff v. Morgan.
Affirmed.
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