Opinion
May 5, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Goss & Gleason, Edward R. Gleason, Denver, for plaintiff in error.
Charles A. Friedman, Edward O. Geer, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This was an action for personal injuries incurred as a result of a single-car automobile accident. The driver of the automobile was the plaintiff in error, Bonifacio Lopez, Jr., who was the defendant below and whom we shall refer to as 'Lopez.' The only passenger in the automobile was Joe L. Churchman, the plaintiff below and defendant in error here, whom we shall refer to as 'Churchman.' It is uncontroverted that Churchman was a guest in Lopez's automobile, and that, by reason of the provisions of our guest statute, C.R.S.1963, 13--9--1, Churchman could not recover for the injuries which he suffered in the accident unless it could be proven that the accident was caused by the intoxication of the driver, the driver's wanton and willful disregard of the rights of the passenger, or intentional act on the part of the driver.
Churchman's action against Lopez was commenced under a complaint alleging all three such grounds. However, at the time of the pretrial order and at the time of trial, the parties agreed that the issues in the case would be restricted to negligence consisting of willful and wanton disregard of the rights of others or intentional conduct on the part of Lopez as being the proximate cause of the accident and the injuries to Churchman. On such basis the matter was then tried before a jury.
The jury's verdict was returned in favor of the plaintiff. The defendant moved for a judgment, notwithstanding the verdict, or in the alternative for a new trial. Such motions were denied, and this appeal has been brought.
The only errors alleged here by Lopez which we consider to have merit are his objections to the refusal of the trial court to give certain instructions tendered by him. Disregarding their errors in form, the instructions which were tendered by Lopez and which were refused all pertained to the affirmative defenses on the grounds of Churchman's contributory negligence and assumption of risk.
The tendered instruction relating to the assumption of risk by Churchman was to the effect that a person who becomes intoxicated with another person assumes the risk of injuries resulting from the other person's intoxication, and that if the jury found Churchman's injuries resulted from the intoxication of Lopez it should find for the defendant, Lopez.
1. CONTRIBUTORY NEGLIGENCE
Primarily, the evidence of contributory negligence on the part of Churchman which Lopez asserts in this appeal is Lopez's testimony that Churchman yelled 'Look out' and jerked the steering wheel of the truck in which the parties were riding. Such testimony was disputed. However, even under Lopez's version of the accident, these acts on the part of Churchman did not occur until after the truck had left the paved surface of the road and as a front wheel of the truck was sinking into the sand along the highway shoulder. In short, if we accept the evidence most favorable to Lopez, the accident was in progress. In view of these circumstances, this did not constitute evidence from which reasonable men could conclude that such alleged acts on the part of Churchman contributed in any way to the accident and did not create a factual question requiring jury determination. Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1167.
As asserted by defendant, there is also inherent in this case the possibility that Churchman may have been contributorily negligent and may have assumed the risk of his injuries because he entered Lopez's truck knowing that Lopez had consumed an intoxicating beverage. It is this question which is next considered.
2. ASSUMPTION OF RISK
We do not agree that it was improper for the trial court to rule in this case that, as a matter of law, Lopez was not intoxicated and to preclude the jury from any consideration of Churchman's having assumed the risk of his injuries by reason of riding with Lopez when he, Churchman, knew Lopez had drunk intoxicants. In this case neither the possible intoxication of Lopez nor the possible impairment of his driving ability due to the consumption of intoxicants ever became factual issues in the case. Intoxication on the part of Lopez for the purpose of determining his liability under the guest statute was removed as an issue from the plaintiff's case by the plaintiff, with the consent of the defendant, prior to the commencement of trial. From the standpoint of defendant Lopez's case, the issues of driver intoxication or driver impairment due to intoxicants were removed as affirmative defenses by Lopez and his counsel at the beginning and throughout the entire course of the trial. There was uncontradicted evidence by both Churchman and Lopez that they had drunk substantial quantities of beer prior to the accident; however, Lopez's counsel in his opening argument asserted that the evidence would establish that Lopez was not intoxicated and that his driving ability was not impaired. All testimony at trial, either on the part of Lopez or by Churchman, was to the effect that Lopez was not intoxicated and that his faculties appeared to have been unimpaired by his beer drinking. Unlike the situation in United Brotherhood of Carpenters etc. v. Salter, 114 Colo. 513, 167 P.2d 954, Sniezek v. Cimino,
The judgment is affirmed.
COYTE and DWYER, JJ., concur.