Rabago v. Meraz

PETERS, J. Plaintiff appeals from a judgment, based upon a jury verdict, in favor of defendant in an action for damages for injuries suffered by plaintiff when defendant drove his automobile, in which plaintiff was riding, into a parked vehicle. As the main ground for reversal she contends that the trial court erred in its instructions. We are of the opinion that, for the reasons set forth below, the jury was erroneously instructed, and that the judgment must be reversed.

The principal questions presented revolve around plaintiff’s status at the moment of the accident. To assess properly these problems reference will be made to the pleadings,- the evidence, and the jury charge.

In her first cause of action plaintiff alleged that she was a guest in defendant’s car, that defendant was intoxicated, and that his condition of insobriety was the proximate cause of the accident. In her second cause of action she simply alleged that she was a passenger, and was injured as a proximate result of defendant's negligence. The answer pleaded a general denial, contributory negligence, and assumption of risk. In a joint pretrial statement the issues were limited to (a) “Whether plaintiff was a guest or passenger,” (b) defendant’s intoxication and negligence, and (c) plaintiff’s contributory negligence and assumption of risk. The pretrial order adopted the issues as stated by the parties in their joint statement, but for some unknown reason that document referred to the second cause of action as alleging that plaintiff was “a passenger for hire.” The words “for hire” do not appear in the complaint, answer or joint pretrial statement. It must be assumed that the two [57]words were inserted by the pretrial judge either by inadvertence or in the erroneous belief that the law recognizes only two categories of a nondriving occupant in a car—guest or passenger for hire. At any rate, the parties subsequently entered into a stipulation that the pretrial order be amended “to add to the defendant’s contentions a denial. . . that the plaintiff was a passenger for hire. ’ ’

The evidence produced at the trial indicated, without dispute, that plaintiff and defendant met at a dance hall where they consumed several drinks, that they then bought a bottle of whiskey, and set out in defendant’s car for a party to which they had been invited, together with several companions. Defendant drove, and plaintiff sat next to him, with one companion on her right and the others in the rear seat. The car collided with a parked vehicle, causing the injuries of which complaint is made. In addition to these undisputed facts, evidence was offered from which the jury could have found any of the following facts to be true: (1) that plaintiff asked defendant not to drive so fast, and defendant told her not to worry and that nothing would happen; (2) that defendant continued to drive at an excessive speed, and shortly before the collision occurred plaintiff requested that he stop the automobile and permit her to get out, but defendant failed or refused to stop; (3) that while the car was in motion plaintiff placed her arms around defendant’s neck and kissed him; (4) that defendant did not appear to be intoxicated at the moment the parties first entered his automobile.