Blevens

Plaintiff appeals from a judgment for the defendant entered after defendant’s motion for nonsuit was granted upon completion of plaintiff’s opening statement to a jury. The appeal is presented on the clerk’s transcript and on a settled statement in lieu of a reporter’s transcript.

Plaintiff’s complaint alleged a cause of action for damages for personal injuries he sustained in a waterskiing accident caused by defendant’s negligent operation of a motorboat. The injury occurred on May 10, 1963, on the Colorado River, south of Parker Dam. The answer denied the charging averments of the complaint and alleged the defenses of contributory negligence and assumption of risk. The pretrial order restated the issues framed by the pleadings.

The opening statement, which is made a part of the settled statement on appeal, is as follows: “On May 12, 1963, plaintiff and another man named Bob Burns were water skiing on the Colorado River at a point about five miles south of Parker Dam, being towed at that time by a boat owned and operated by defendant Nick Sfetku. Both plaintiff and Burns were being towed by separate ropes behind the defendant’s boat, Burns being to the right of plaintiff and…