Appelhans v. Kirkwood, 19470

• Decision Date: 13 May 1959
• Docket Number: No. 19470,19470
• Parties: Johannes APPELHANS and Nicholas Appelhans, Plaintiffs in Error, v. Carol KIRKWOOD, a minor, by her next friend, Helen Kirkwood, Defendants in Error. . Oct, 2, 1961. John C. Marsh, Denver, for plaintiffs in error. W. Ray Bengert, Yegge, Hall & Shulenburg, James L. Treece, Denver, for defendants in error. DOYLE, Justice. The parties will be referred to as they appeared in the trial court where plaintiffs in error were defendants and defendant in error was plaintiff. Throughout the opinion, when the word 'defendant' is used alone it refers to the son, Johannes Appelhans. Defendants seek review of a judgment based on a jury verdict in favor of plaintiff in the amount of $10,000. Plaintiff was a passenger in a vehicle being driven by defendant and was injured when the automobile collided with a post on the Valley Highway. The collision occurred on
• Court: Colorado Supreme Court

Page 233

365 P.2d 233

148 Colo. 92

Johannes APPELHANS and Nicholas Appelhans, Plaintiffs in Error, v. Carol KIRKWOOD, a minor, by her next friend, Helen Kirkwood,

Defendants in Error.

No. 19470.

Supreme Court of Colorado, In Department.

Oct, 2, 1961.

John C. Marsh, Denver, for plaintiffs in error.

W. Ray Bengert, Yegge, Hall & Shulenburg, James L. Treece, Denver, for defendants in error.

DOYLE, Justice.

The parties will be referred to as they appeared in the trial court where plaintiffs in error were defendants and defendant in error was plaintiff. Throughout the opinion, when the word 'defendant' is used alone it refers to the son, Johannes Appelhans. Defendants seek review of a judgment based on a jury verdict in favor of plaintiff in the amount of $10,000. Plaintiff was a passenger in a vehicle being driven by defendant and was injured when the automobile collided with a post on the Valley Highway.

The collision occurred on May 13, 1959, some time between 12:30 a. m. and 1:30 a. m. Prior to the collision plaintiff and defendant in company with other young people, had been driving around Denver drinking beer. They made several stops including one at the park and one at a pizza restaurant. Three of the party had been taken home prior to the happening of the accident.

A full case of beer, supposedly of the 3.2% kind, had been purchased early in the evening and the defendant-driver was shown by the evidence to have drunk at least five or possibly more cans of beer. It also appeared that the defendant knew that the brakes on his vehicle were defective. Immediately prior to the collision, defendant had been driving in a reckless manner on the Valley Highway. He was weaving back and forth, and had previously driven through several red lights and stop signs and had traveled at speeds as high as 60 miles per hour notwithstanding the defective brakes.

While the car was being driven southeast on the Valley Highway and at a high speed, defendant, according to the evidence, had been talking to the person next to him and had been listening to the radio. He attempted to turn the vehicle onto what he believed was an access road to East Evans. It turned out that this was a frontage turn-off, and when he attempted to stop suddenly, the defective brakes failed to take hold and the vehicle struck the post at a high speed. Plaintiff was injured quite seriously. She suffered shock and sustained fractured vertebrae, a deep puncture wound in her left leg in addition to lacerations and contusions.

In their answer, defendants affirmatively pleaded contributory negligence and assumption of risk. The trial court granted plaintiff's motion to strike the defense of contributory negligence. The cause was submitted to the jury pursuant to the guest statute and the jury found for the plaintiff as indicated above.

In cross examining plaintiff at the trial, defendants' counsel questioned her concerning a pre-trial discovery deposition which she had given. Counsel for plaintiff objected to the particular form of the question and it then appeared that the original of the plaintiff's deposition had been submitted to her counsel for examination, correction and signing. She made certain corrections but had not signed it and her counsel had not returned it to the reporter. The reporter had failed to follow up and as a consequence it had not been certified by the reporter-notary and had not been filed as required by Rule 30(f). In view of this, the court ordered the deposition suppressed on the ground that it did not conform to the rules of civil procedure and denied the defendants' offer of the document into evidence notwithstanding plaintiff's counsel's consent to it being received in its unsigned and uncertified form, provided it was not shown to the jury.

No effort was made by defendants' counsel to lay a foundation for impeachment after the first question was objected to. Counsel for defendant appearently was content to stand on the record as made rather than to make further effort to show prior inconsistent statements on the part of the plaintiff. Examination of plaintiff's testimony at the trial reveals that it was vague and uncertain in all respects. Plaintiff was not able to describe what had occurred early in the evening prior to the accident and there was much inconsistency about the number of stops that had been made during the evening and where they had occurred.

Other occurrences at the trial which assumed some importance in connection with this review include questions to defendant as to his past driving record and questions propounded to his father concerning whether the father had held a public liability insurance policy.

In seeking a reversal, defendants rely on the following alleged errors:

1. Failure of the trial court to recognize that the evidence on the question of assumption of risk was undisputed so as to require the entry of a directed verdict in favor of the defendants.

2. That the trial court should have granted a directed verdict in favor of Nicholas Appelhans, father of defendant, on the ground that the family car doctrine was inapplicable and that plaintiff failed to otherwise establish the vicarious responsibility of the father.

3. That the court erred in refusing to allow defendants to use plaintiff's deposition for purposes of impeachment.

4. That the court misinstructed the jury (Instruction No. 11) with respect to the requisites of the family car doctrine.

5. That it was error for the court to refuse to grant defendants' motion for new trial as a result of acts of plaintiff's attorney, consisting of (a) the mention of liability insurance, and (b) in asking whether defendant had ever been arrested in connection with the operation of a motor vehicle.

I. The first question is whether the undisputed evidence in the case established

that there was assumption of risk as a matter on law.

Defendants' argument is predicated on the proposition that the risks and hazards of the activity which gave rise to plaintiff's injury were fully apparent to her notwithstanding her age. They further argue that she had several opportunities to leave the vehicle and to avoid the very risk which resulted in her injury and that she failed to take advantage of these opportunities. The question which we must determine, therefore, is whether the evidence justified submission of the issue of assumption of risk to the jury. In urging that the undisputed evidence made the question one of law, defendants rely on the decision of this Court in Haller v. Gross, 135 Colo. 218, 309 P.2d 598, 600. There it appeared that the plaintiff, a 19 year old, had actually participated in a drinking party with the driver of the vehicle even to the extent that she had offered liquor to the driver while he was engaged in driving the automobile. In holding that the plaintiff was barred in that case, the Court said:

'Plaintiff, while legally a minor, was 19 years old and possessed of the usual and ordinary faculties of an adult person and it may be assumed that she was fully capable of knowing, or could anticipate, danger that might follow from the operation of the car due to the physical incapacity of the driver, and she made no effort to avoid the likelihood of the accident and it must be said that she assumed the risk, which bars her recovery. * * *'

The facts in the instant case are, however, quite different from those in the Haller case. Here the plaintiff is a 14 year old girl who had the mentality, according to the testimony of the family doctor, of a 10 year old. She was shown to have had little, if any, experience or knowledge concerning the operation of an automobile and practically no knowledge concerning the effects of alcohol. Furthermore, she was not shown to have participated in the drinking, and thus it cannot be said that the case is governed by Haller v. Gross, supra. In Wilson v. Hill, 103 Colo. 409, 86 P.2d 1084, the Court in speaking of the duty of a passenger to protect himself from risks apparent to him held that the failure of a passenger to leave the vehicle at the first available opportunity did not in and of itself constitute contributory negligence. The Court said that this issue must be judged in the light of all of the surrounding facts and circumstances and that essentially the matter is one for determination by the jury under proper instructions.

In a later case, United Brotherhood of Carpenters and Joiners v. Salter, 114 Colo. 513, 167 P.2d 954, 958, the Court distinguished between the case where one enteres a vehicle with full knowledge that the driver is under the influence of liquor and one in which the question of the plaintiff's knowledge is open to determination. Speaking through Mr. Justice Stone it was said:

'The effect of intoxicating liquor in depriving a driver of care and caution and inducing physical incapacity in the operation of a car is universally known and tragically illustrated almost daily. Where one becomes a guest and imprudently enters a car with knowledge that the driver is so under the influence of intoxicants as to tend to prevent him from exercising the care and caution which a sober and prudent man would employ in the operation and control of the car, the guest is barred from recovery by reason of his contributory negligence, and as having assumed the risk involved. Where the evidence of such fact is without conflict, plaintiff is barred from recovery as a matter of law. * * * (citing authorities). Where the evidence is sufficient to raise a question as to plaintiff's knowledge and prudence, the determination of that issue must be submitted to the jury or other trier of facts * * * (citing authorities).'

From a careful consideration of the Wilson and the United Brotherhood cases together with our most recent decision in Cox v. Johnston, 139 Colo. 376, 339 P.2d 989, we conclude that the issue of the extent of plaintiff's knowledge was properly one for the jury. Plaintif...