Pletchas v. Von Poppenheim

• Court: Colorado Supreme Court
• Writing for the Court: FRANTZ
• Citation: Pletchas v. Von Poppenheim, 365 P.2d 261, 148 Colo. 127 (Colo. 1961)
• Decision Date: 02 October 1961
• Docket Number: No. 19388,19388
• Parties: Dan PLETCHAS, Plaintiff in Error, v. Kurt VON POPPENHEIM, Defendant in Error.

Page 261

365 P.2d 261

148 Colo. 127

Dan PLETCHAS, Plaintiff in Error, v. Kurt VON POPPENHEIM, Defendant in Error.

No. 19388.

Supreme Court of Colorado, In Department.

Oct. 2, 1961.

Rehearing Denied Oct. 23, 1961.

Wormwood, O'Dell & Wolvington, Denver, for plaintiff in error.

McCarthy & White, Denver, for defendant in error.

FRANTZ, Justice.

Kurt Von Poppenheim prevailed before a jury in his suit to recover damages for injuries alleged to have been sustained by him while a passenger in a car owned and operated by Dan Pletchas. Grounds for reversal of the judgment entered on the verdict are: (1) error in refusing to direct a verdict in favor of Pletchas when the evidence established as a matter of law the contributory negligence and assumed risk of Von Poppenheim, (2) error in refusing to instruct the jury on the guest statute, (3) error in refusing to instruct the jury on the non-liability of Pletchas if he and Von Poppenheim became intoxicated and the latter was injured by reason of Pletchas' intoxication, and (4) misconduct of the jury in returning its verdict.

Should the court have directed a verdict in favor of Pletchas? Was Von Poppenheim guilty of contributory negligence or of assuming the risk as a matter of law, thereby neutralizing the undisputed negligence of Pletchas?

That Pletchas was guilty of negligence seems to be an accepted premise of both briefs. But the parties are at odds regarding the significance of the evidence as it bears upon questions of contributory negligence and assumption of risk. Pletchas maintains that the evidence permits only one denouement; that Von Poppenheim was contributorily negligent and that he assumed the risk. Von Poppenheim disagrees; according to him, both the evidence and the inferences which may be drawn from it are in such conflict on a number of material details that the trial court could act only as it did in refusing to direct a verdict.

Pletchas, Von Poppenheim, and one McDonald, all professional wrestlers, left Albuquerque, New Mexico, in Pletchas' car. Their destination was Denver, Colorado, where they were to participate in scheduled matches with other wrestlers who would be their opponents. En route two purchases of beer were made.

In dispute are the following: the quantity of beer purchased; the number of cans of beer consumed before the accident, and particularly the number Pletchas drank; whether Von Poppenheim and McDonald remonstrated at times when Pletchas was driving at an excessive speed; whether, and to what extent, the consumption of beer affected Pletchas' operation of the vehicle.

In respect to the last, there was evidence that Pletchas exhibited an impairment of his driving skill. On the other hand, there was evidence indicating that his ability to drive was not diminished. This could be a valid inference from his conduct immediately after he lost control of his car and it skidded over and down the bank of the mountain road they were traversing.

We recently held that where the evidence is not in agreement as to the quantity of the intoxicant consumed and as to its effect upon the person, and where divergent inferences concerning his condition may be drawn from the evidence, 'we had questions for the jury' to determine. Cox v. Johnston, 139 Colo. 376, 339 P.2d 989, 991.

Cox v. Johnston is also authority for the propositions (1) that contributory negligence and assumption of risk are jury questions if the content of the evidence adduced in connection therewith calls for the resolution of conflicting evidence, and admits of differing inferences; and (2) that ordinarily the jury should, if it finds a driver was under the influence of intoxicants, decide whether such condition proximately caused the accident. See United Brotherhood of Carpenters and Joiners of America, Local Union No. 55 v. Salter, 114 Colo. 513, 167 P.2d 954.

We hold that the several pronouncements alluded to in the Cox case are applicable to this case and control our consideration of it on review. It follows that the trial court properly submitted the case to the jury, leaving to it the traditional function of resolving disputed facts and drawing permissible inferences, and of deciding the proximate cause of the accident.

We are in record with the trial court in its holding that the guest statute (C.R.S. '53, 13-9-1) was inapplicable to the uncontroverted facts of the case. Left unchallenged is the evidence of Von Poppenheim that a usage obtained among professional wrestlers by which a wrestler driving his car and carrying other wrestlers is paid by the latter on a mileage basis at the end of the trip. The trial court concluded that this mode of dealing among wrestlers was part of the arrangement of carriage in this case and removed it from the operation of the guest statute.

Parties engaged in the same occupation are presumed to have knowledge of the usages applicable to it; and it is not necessary in litigation between them to establish actual knowledge of a usage affecting their dealings. Fleming v. Wells, 45 Colo. 255, 101 P. 66. Undisputed evidence of the existence of a usage imposes the duty on the...