Opinion
No. 71-064 (Supreme Court No. 24274)
Decided June 8, 1971.
Action to recover damages for injuries sustained while riding as a guest in automobile owned by one defendant and driven by other defendant. From jury verdict for defendants, plaintiff appealed.
Affirmed
1. INSTRUCTIONS, CIVIL — Guest Statute — Willful and Wanton Negligence — Use of Words — "Act Purposefully Committed" — Proper. Where court, in action involving guest statute, instructed jury on definition of willful and wanton negligence by using exact words of instruction prepared by Colorado Supreme Court Committee on Civil Jury Instructions, the use of the words "act purposefully committed" is proper and is supported by a number of Supreme Court decisions.
2. Jury Instructed — Speed Limits — Requested Instruction — Properly Refused — Undue Prominence. Where court had instructed the jury on the applicable statutes on speed limits, plaintiff's requested instruction stating that speed may, under some circumstances, constitute willful and wanton negligence, was objectionable as giving undue prominence to evidence of speed and was properly refused.
3. AUTOMOBILES — Defense — Assumption of Risk — Factual Questions — Properly Submitted — Jury. Plaintiff's testimony that she warned defendant-driver to slow down and that she did not want to get out of car at the top of the mountain pass, plus the reasons she gave for this decision, presented questions as to whether plaintiff had a knowledge and appreciation of the risk involved in remaining in the car and whether she had voluntarily and unreasonably exposed herself to this risk; thus the defense of assumption of risk was properly submitted to the jury.
Error to the District Court of the City and County of Denver, Honorable Robert W. Steele, Judge.
Peter W. Pryor, for plaintiff in error.
Yegge, Hall Evans, Edward H. Widmann, for defendants in error.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the order of their appearance in the trial court. The plaintiff Gail Lippincott brought this action to recover damages for injuries she sustained while riding as a guest in an automobile owned by defendant J. H. Ottman, and driven by defendant Evelyn Colwell. The case was tried to a jury; a verdict was returned for defendants; and judgment was entered on the verdict.
On February 25, 1965, plaintiff Gail Lippincott and the defendant Evelyn Colwell were on a trip by automobile from Denver to a ski resort located on the western slope of Loveland Pass. They had passed the summit of the Pass and were descending on a highway which was partially covered with patches of ice and snow. The vehicle driven by Miss Colwell swerved out of control on a curve and collided with a tractor-trailer which was ascending the Pass on the opposite side of the highway. Plaintiff was injured in the collision.
Plaintiff's action was within the purview of the Colorado Guest Statute, and it was her theory that she was entitled to recover because the accident was caused by the alleged willful and wanton negligence of the defendant. In submitting the case to the jury the court gave two instructions over plaintiff's objections and refused three of plaintiff's tendered instructions. Plaintiff claims that these rulings were in error and that she is entitled to a new trial.
Court Instruction No. 5
[1] In its Instruction No. 5, the court defined willful and wanton negligence, using the exact language of Colorado Jury Instructions 11:16:
"Negligence consisting of a willful and wanton disregard of the rights of others is an act purposefully committed, which the operator knew was dangerous to others and which he nonetheless performed heedlessly and recklessly, without regard to the consequences and the rights and safety of others."
This instruction was prepared by the Colorado Supreme Court Committee on Civil Jury Instructions. It is based upon and supported by a number of Supreme Court decisions. See, e.g., Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038; Helgoth v. Foxhoven, 125 Colo. 446, 244 P.2d 886. Plaintiff argues that this instruction is in error because the use of the words "act purposefully committed," equates a willful and wanton act with an intentional act, and places the burden on the plaintiff to establish that the driver intentionally caused the accident. The fallacy of this argument is in its premise. The guest statute clearly distinguishes between an act which is intended by the operator to cause an "accident" and a willful and wanton act which may be an act purposefully committed, but without intent to cause an accident. The use of the words "act purposefully committed" is proper in defining willful and wanton negligence, and is supported by Pettingell v. Moede, supra, which contains the following definition:
"* * * a willful and wanton disregard expresses the thought that the action of which complaint is made was the result of an active and purposeful intent. Willful action means voluntary; by choice; intentional; purposeful."
Plaintiff's Tendered Instructions No. 1 and No. 3
[2] The plaintiff contends that Instruction No. 5 does not fully and adequately instruct the jury on willful and wanton negligence. Plaintiff tendered Instruction No. 1 by which she requested the court to instruct the jury that speed under some circumstances may constitute willful and wanton negligence. The court, in a separate instruction not challenged here, had instructed the jury on the applicable statutes on speed limits. The tendered Instruction No. 1 was properly refused. The instruction was objectionable because it singled out and gave undue prominence to evidence of speed to the exclusion of other important facts in evidence. See Denver v. Quick, 108 Colo. 111, 113 P.2d 999; Denver v. Lyttle, 106 Colo. 157, 103 P.2d 1.
Plaintiff's tendered Instruction No. 3 is a more elaborate statement of the elements of willful and wanton negligence, and plaintiff contends that it should have been given as a supplement or complement to Instruction No. 5. The refusal of this tendered instruction was proper. The subject matter of the tendered instruction, willful and wanton negligence, was fully and adequately covered by Instruction No. 5. See Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862.
Court Instruction No. 7
Instruction No. 7 is an instruction on the defense of assumption of risk, and is identical to Colorado Jury Instructions 9:21. The plaintiff argues that the defense of assumption of the risk was not available under the evidence in the case. In cases involving the guest statute, the Supreme Court has recognized that the defense of assumption of risk is available in some cases. These cases involve driver intoxication, see Myers v. Myers, 151 Colo. 8, 375 P.2d 525, Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233, and Haller v. Gross, 135 Colo. 218, 309 P.2d 598; drowsiness and sleepiness, see Parker v. Foxworthy, 154 Colo. 455, 391 P.2d 358; and physical defects impairing the driver's ability to operate a vehicle, see Wilson v. Hill, 103 Colo. 409, 86 P.2d 1084.
This defense was also available in this case, and the court properly submitted the issue to the jury. The defendant suffered a concussion in the collision and she testified that as a result of this injury she had no recollection of the collision or of the events immediately preceding it. The only evidence of the defendant's driving prior to the collision was the testimony of the plaintiff. Plaintiff testified that she had on two occasions asked the defendant to slow down because of the icy spots on the highway. It was on the basis of this testimony that the court submitted the issue of willful and wanton negligence to the jury.
[3] On direct examination, the plaintiff was asked, "Why didn't you get out of the vehicle on top of the pass?" She answered, "I didn't want to," and then stated her reasons for remaining in the car. Plaintiff's testimony that she warned the driver to slow down is evidence that plaintiff had a knowledge and an appreciation of the danger and risk involved in remaining in the car. Her testimony that she did not want to get out of the car at the top of the Pass, and the reasons which she gave for this decision, presented the factual question of whether the plaintiff voluntarily and unreasonably exposed herself to a known risk. The court properly submitted these factual questions and the defense of assumption of risk to the jury.
Plaintiff's Tendered Instruction No. 2
This instruction is plaintiff's version of the assumption of risk doctrine. Since the instruction given by the court adequately stated the law on this subject, it was properly refused. See Maloney v. Jussel, supra.
The jury was properly instructed.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.