Opinion
Rehearing Denied June 27, 1972.
John H. Williamson, Denver, for plaintiff-appellant.
Walberg & Pryor, Peter W. Pryor, Denver, for defendants-appellees.
COYTE, Judge.
Plaintiff brought an action for damages against defendants for injuries received in an automobile accident. Defendants admitted the occurrence of the accident, denied negligence and pleaded the Colorado guest statute, assumption of risk, and contributory negligence as affirmative defenses. At the close of plaintiff's case, the trial court granted defendants' motion for directed verdict on the ground that plaintiff failed to show sufficient evidence of either gross negligence or intoxication, and dismissed the action. Plaintiff appeals. We reverse.
Plaintiff was a passenger in a car driven by defendant Carl Stillman, and registered in the name of defendant Gene Stillman, Carl's stepfather. Plaintiff, Carl, and a third person, all high school students, were traveling north about 60 or 65 miles per hour on a wet hard-packed gravel road. They had gone about five miles south on the same road at approximately the same speed, then turned around and were headed back when the car went out of control.
The record discloses that Carl tapped the brakes, then braked hard and apparently turned the wheels the wrong way, and the car went off the road. Carl stated that he thought he was proceeding at a safe speed and that he had experienced no difficulty in handling the car prior to the accident. The plaintiff, who did not herself drive an automobile, testified that Carl seemed to have control of the vehicle, that she was comfortable at the speed driven, and that she did not anticipate an accident would occur. A county deputy sheriff testified that en route to the accident scene he had driven over a similar road and that, under the prevailing conditions of the road when the accident occurred, he estimated the safe and reasonable speed to be 45 miles per hour. He further stated that in his opinion a car traveling faster than 55 miles per hour would be uncontrollable.
Under C.R.S.1963, 13--9--1, which the parties stipulated was applicable, plaintiff had to prove that the accident was caused either by Carl's negligence, consisting of a willful and wanton disregard of the rights of others, or by his intoxication. These issues should have been submitted to the jury if the evidence, when viewed in the light most favorable to plaintiff, presented facts and circumstances from which reasonable men might reach different conclusions. Hennigar v. Van Every, 139 Colo. 144, 337 P.2d 7.
Although plaintiff considered the speed traveled to be reasonable, the testimony of the deputy sheriff, if believed, would indicate that it was highly hazardous under the circumstances. However, there was no evidence that defendant Carl Stillman had knowledge of the actual danger involved or that he displayed such indifference to the possible consequences of his driving as would constitute a willful and wanton disregard of plaintiff's rights and feelings. Plaintiff being a guest could not recover on the basis of willful and wanton conduct of the said defendant, and the trial court properly ruled plaintiff failed to establish a prima facie case against defendants on this issue. Burrell v. Anderson, 133 Colo. 386; 295 P.2d 1039.
As to the issue of intoxication, the evidence established that Carl, a 16-year-old, 125-pound boy, had consumed at least 11 ounces of wine prior to the accident. He drank approximately one ounce at 9:30 a.m., and then he and a friend obtained two quarts of wine which they shared with three others between eleven and twelve o'clock that morning. Carl testified that he drank two glasses of wine from the two bottles. His testimony as to the size of the glass he used varied from a juice glass to one slightly smaller than a water glass. He had eaten lunch at 1:30 p.m. and the accident occurred about one hour later. The deputy sheriff detected alcohol on Carl's breath after the accident. Testimony regarding Carl's conduct in handling the car, including the speed driven and the judgmental errors in reacting to the skid, might reasonably be considered evidence of impairment caused by drinking. In Norden v. Henry, 167 Colo. 274, 447 P.2d 212, the court held that intoxication, for the purposes of the guest statute, means:
'(N)ot that a driver should be intoxicated to the extent that his faculties are completely impaired, 'but only that degree of influence which looses the bonds of self-restraint and causes him to operate his car in a manner different from that in which it would be operated by an ordinarily cautious and prudent person.''
The admission of drinking wine, together with testimony indicating a possible impairing effect on his conduct, were sufficient to warrant submitting to the jury the issue of intoxication and its causal relationship to the accident.
Judgment is reversed and the case remanded for a new trial.
ENOCH and PIERCE, JJ., concur.