Foster v. Redding, 13689.
| Decision Date | 20 May 1935 |
| Docket Number | 13689. |
| Citation | 97 Colo. 4,45 P.2d 940 |
| Parties | FOSTER v. REDDING. |
| Court | Colorado Supreme Court |
Rehearing Denied June 10, 1935.
In Department.
Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.
Action by Eleanor Redding against Thomas A. Foster. To review a judgment for plaintiff, defendant brings error, and asks that the writ be made a supersedeas.
Affirmed.
Hyman Berman, Fred N. Holland, and Joseph N. Lilly all of Denver, for plaintiff in error.
Walter E. Schwed, of Denver, for defendant in error.
These parties appeared in reverse order in the trial court. They are hereinafter referred to as Foster and Mrs. Redding respectively.
Mrs Redding was injured while riding as a guest in Foster's automobile driven by him. Charging this as the result of Foster's intoxication and wanton and willful misconduct, she brought this action for damages in the sum of approximately $8,000. On a verdict in her favor for $1,500, judgment was entered. To review that judgment Foster prosecutes this writ and asks that it be made a supersedeas. His 22 assignments are grouped and argued under six headings. Of these, three only deserve consideration. In fact, they embrace the others and all might properly be disposed of under two. The three are: (1) Motion to elect between causes of action should have been sustained; (2) erroneous rulings were made on instructions concerning 'willful and wanton' conduct; (3) contributory negligence and assumption of risk forbade recovery.
The complaint contains two causes of action; the first based upon intoxication, the second on willful and wanton negligence. The answer denies intoxication and negligence, and alleges contributory negligence, assumption of risk, and unavoidable accident.
The statute involved, so far as here applicable, limits recovery by a nonpaying guest to damages caused by the driver's 'intoxication, or by negligence consisting of a willful and wanton disregard of the rights of others.' Section 1, c. 118, p. 460, Laws 1931.
A brief statement of facts is essential to an understanding of our conclusions. About 10 p. m. the automobile in question, with Foster at the wheel, left Denver for Lookout Mountain Inn at the top of Lookout Mountain, some miles out of the city. Going and returning Mrs. Redding rode in the back seat with one Wingo, and her sister in front with the driver. These, with four others who made the trip in another car, had done some light drinking Before departure, and Foster took whisky with him. At the Inn they danced and visited until about 1 a. m. While there Foster continued drinking. The road in question is the ordinary smooth, wide, well surfaced, winding, and in some places precipitous, mountain highway. Foster, an experienced driver, knew it well. One of its curves is known as Windy Point, below which the road, for a short distance, is straight. In rounding this curve on the return trip, Foster, with no apparent excuse save his incapacity, drove to the lift, or outside of the road. After completing the turn he ran into a fence on that side, stopped, then (apparently using his accelerator by mistake instead of his brake) suddenly started again and the car shot down the embankment. It rolled several hundred feet down the hill, and all the occupants were more or less injured. Mrs. Redding's injuries required five weeks' hospitalization. In striking the fence, which is built of two wire cables strung on stone posts, both cables and three posts were broken. The evidence contains no hint of unavoidable accident. It overwhelmingly establishes Foster's intoxication as the cause thereof, and this is here practically admitted.
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State v. Bolsinger
...defendant's intentional disregard of his wife's safety, it was recklessness. The language used in the similar case of Foster v. Redding, 97 Colo. 4, 7, 45 P.2d 940, 942, is applicable "One who is willfully and wantonly negligent may not be intoxicated, but one who, sufficiently under the in......
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Omar v. I.N.S.
...of the rights of all persons who ride with him or use the highway he travels. Bolsinger, 21 N.W.2d at 493 (quoting Foster v. Redding, 97 Colo. 4, 45 P.2d 940, 942 (1935)) (emphasis added).9 The Supreme Court used language similar to the definition of recklessness in the Model Penal Code § 2......
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Falls v. Mortensen
...of wilful negligence. But the terminology used does not impair the authority of the decision on the facts proven. In Foster v. Redding, 97 Colo. 4, 45 P.2d 940, 941, the plaintiff, as guest, charged the defendant driver with wanton and wilful misconduct. Defendant drove to an inn at the top......