Opinion
July 20, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 565
C. J. Berardini and Leo Gemma, Jr., Denver, for plaintiff-appellant.
Sheldon, Bayer, McLean & Glasman, Richard C. McLean, Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
Plaintiff, Barr, sued to recover damages for personal injuries suffered when he fell off the running board of a truck owned by defendant, Boulder Ready-Mix Concrete, Inc., and operated by defendant Rathbum. The case was tried to a jury which returned a verdict in favor of the defendant. Barr appeals from the judgment entered in accordance with the verdict. We affirm.
Barr asserts that the trial court erred in submitting to the jury the issue of whether Barr was a guest within the terms of the guest statute. (C.R.S. 1963, 13--9--1)
The court gave Colorado Jury Instruction 11:14, as follows:
'A person is a guest when he is being transported in a vehicle at the invitation, expressed or implied, of the operator of the vehicle without payment for such transportation. The payment may be cash or any benefit which is sufficiently real, tangible or substantial so as to have been an inducing cause for transportation.'
The jury was further instructed that if they found that Barr was a guest as above defined they should find for the defendants. The jury was also instructed on negligence, contributory negligence and proximate cause. Barr neither alleged nor proved intoxication or willful and wanton negligence on the part of Rathbun.
Barr claims that he was not within the purview of the guest statute because his presence on the truck constituted a real, tangible and substantial benefit to defendants as a matter of law. The evidence does not support this claim.
Rathbun was delivering cement to be poured at a site where Barr was working. Barr's employer was concerned that Rathbun might miss the turn-off from the main road so Barr was stationed at that point to direct Rathbun to the pour site. Rathbun had been advised to expect this assistance. He picked up Barr at the turn-off and Barr rode on the right-hand running board while giving Rathbun the necessary instructions to reach the pour site.
Barr testified, 'Upon reaching the site of the pour I spoke to Mr. Rathbun, the driver and told him to stop.' This Rathbun did and both men got off the truck. Then they both went to the rear of the truck where instructions were given to back the truck up an incline to the exact spot where the load was to be discharged. The evidence is uncontradicted that at that point Rathbun knew, from the instructions given by the job foreman or superintendent, exactly where and how to drive the truck.
As Rathbun got into the truck Barr again got onto the right hand running board. Barr testified that he realized that he was interfering with Rathbun's vision when Rathbun attempted to use the sideview mirror to aid in his backing the truck, so he bent down to get out of the way. Moments later Barr fell or was jolted off the truck and was injured.
The record is clear that Barr's help to Rathbun ended when they reached the pour site. From that point on Rathbun was taking his instructions from a third party. He needed no help from Barr and received none.
It is clear that Barr did not establish as a matter of law that his presence on the truck established a benefit that would be 'the inducing cause for the transportation.' Therefore Barr's objection to the instructions is not well founded. Folkers v. Brohardt, 142 Colo. 407, 352 P.2d 792. See Coffman v. Seifert, Colo., 486 P.2d 422 decided June 28, 1971.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.