GRAY v. WARREN, 263 Or. 38 (1972)

500 P.2d 711

GRAY, Respondent, v. WARREN, Appellant.

Oregon Supreme Court.Argued July 7, 1972
Affirmed September 8, 1972

Appeal from Circuit Court, Multnomah County.

AFFIRMED.

David C. Landis, Portland, argued the cause for appellant. With him on the briefs were John Gordon Gearin, and Gearin, Landis Aebi, Portland.

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Leo R. Probst, Portland, argued the cause for respondent. With him on the brief were Carney, Haley, Probst Levak, Portland.

Before O’CONNELL, Chief Justice, and McALLISTER, HOLMAN, HOWELL, and BRYSON, Justices.

CHARLES S. CROOKHAM, Judge.

PER CURIAM.

Plaintiff brought an action against his host for damages resulting from personal injuries inflicted in a one-car accident. Defendant appealed from a judgment entered on a jury verdict for plaintiff.

Both plaintiff and defendant were students at Lincoln High School in Portland. They, together with some other students, absented themselves from school activities and had a beer party at the home of one of the students. On the way back to school, while traveling downhill on Canyon Road, defendant attempted to see if he could coast to the school without using his brakes. He failed to negotiate a turn which resulted in the accident in question.

Plaintiff alleged that defendant was both intoxicated and grossly negligent. Defendant contends that the trial court erred in not holding that plaintiff was contributorily negligent as a matter of law. Defendant argues that plaintiff admitted that he knew defendant was intoxicated but nevertheless voluntarily rode with him. Plaintiff did testify that he knew defendant was intoxicated. However, plaintiff also testified that he thought a person was classed as intoxicated if he had any alcohol to drink regardless of whether or not such person was incapacitated thereby in any respect. The extent of plaintiff’s knowledge of

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defendant’s incapacity resulting from intoxication was a jury question.

Defendant also argues that plaintiff was contributorily negligent as a matter of law because plaintiff voluntarily remained in the vehicle after he had instigated a coasting race between defendant and another vehicle whose operator had also been at the party. The testimony was that after defendant announced his intention to coast to the school, his vehicle was overtaken by another carload of students to whom plaintiff yelled, “We’re coasting.” Whether or not plaintiff instigated a race and voluntarily remained in the car thereafter was a jury question.

The judgment of the trial court is affirmed.

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