Opinion
July 20, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 557
Albin Anderson, Jr., Grand Junction, for plaintiff in error.
Brooks, Miller & Lincoln, T. L. Brooks, Montrose, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties' positions here are the same as in the trial court, and we shall refer to the parties by their trial court designations.
This is an action seeking damages for personal injuries which the plaintiff suffered while riding as a guest in the defendant's car. The case was tried before a jury, which returned a verdict in favor of the defendant. Plaintiff appeals from the judgment entered thereon.
The evidence at the trial established that prior to the accident plaintiff and defendant had each consumed equal quantities of 3.2 beer. One witness to the accident expressed the opinion that erratic actions of the defendant after the accident were caused by defendant's drinking intoxicants. Notwithstanding such evidence, it was the position of the trial judge that intoxication on the part of the defendant was not an issue in the case, and he refused to instruct the jury on such subject, although the jury was advised as to the provisions of the Colorado Guest Statute. Because of such refusal, the case went to the jury on the sole theory that plaintiff, as an automobile guest, could recover from defendant only if he had proved that his injuries resulted from willful and wanton acts of negligence on the part of the defendant. This was error.
Under the provisions of Colorado's Guest Statute, C.R.S.1963, 13--9--1, an automobile guest may recover for injuries suffered in an accident which is the result of the driver's intoxication. However, a jury is not sufficiently instructed if they are merely advised as to the terms of a statute. J. S. Dillon & Sons Stores Co. v. Carrington, 169 Colo. 242, 455 P.2d 201. See Colorado Jury Instructions 11:13, 11:16, 11:17, and 11:18.
Whether the defendant was or was not intoxicated was a jury question, the determination of which was vital to one theory of the plaintiff's case. Any alcoholic beverage may cause intoxication, and the question of defendant's intoxication was not removed from the case by virtue of the fact that the only intoxicant proved to have been consumed by him was 3.2 beer. Cf. Moffitt v. People, 59 Colo. 406, 149 P. 104.
It is defendant's position that, even if the trial court erred in failing to instruct the jury on the defendant's possible intoxication, such error was harmless for two reasons.
First of these is the assertion that the plaintiff's evidence did not contain any showing of either intoxication or of willful and wanton negligence on the part of the defendant. The record shows otherwise. As stated, there was evidence as to the drinking of intoxicants by these parties and an expressed opinion concerning the defendant's intoxication. There was also testimony as to acts by the defendant from which the jury could have found willful and wanton negligence on his part.
The second reason defendant advances in support of his argument that the trial court's error was harmless is that the plaintiff's own evidence established his contributory negligence or voluntary assumption of risk as a matter of law. Under the facts of this case, whether the plaintiff was imprudent in either entering or remaining in the car with the defendant were questions upon which reasonable men might reach different conclusions and require jury determination. Cox v. Johnston, 139 Colo. 376, 339 P.2d 989.
The judgment is reversed, and this cause is remanded for a new trial.
COYTE and ENOCH, JJ., concur.