Millington v. Hiedloff, 13394.
| Decision Date | 20 May 1935 |
| Docket Number | 13394. |
| Parties | MILLINGTON v. HIEDLOFF. |
| Court | Colorado Supreme Court |
Rehearing Denied June 10, 1935.
Error to District Court, City and County of Denver; James C Starkweather, Judge.
Action by May Hiedloff against Pauline Millington. Judgment for plaintiff, and defendant brings error.
Reversed.
W. T. Moyers, W. A. Alexander, and Cecil M Draper, all of Denver, for plaintiff in error.
Page M Brereton, of Denver, for defendant in error.
The plaintiff in error, Pauline Millington, was defendant below and the defendant in error, May Hiedloff, was plaintiff. In this opinion the parties will be so designated.
The defendant and Hattie Millington, her mother, at and prior to the time of the accident out of which this action grows, resided together in the same house in Denver and constituted a family. The defendant was the owner of a Chevrolet sport roadster, which was used by both members of the family partly for pleasure and partly for business. In October, Mrs. Millington made a trip to Coaldale, near Salida, Colo., to see her mother. The plaintiff, the sister of Mrs. Millington, and aunt of the defendant, accompanied Mrs. Millington and started the return trip with her. When they reached a point about a mile north of Sedalia on the Denver-Colorado Springs road, an accident occurred, in which both occupants of the car were injured; Mrs. Hiedloff being the more seriously injured of the two. Mrs. Hiedloff, as plaintiff, brings this action for damages for personal injuries against her niece, Pauline Millington, the owner of the car, on the theory that the latter is liable under the family car doctrine. Trial was had to a jury which found for plaintiff, and judgment on the verdict was entered in her favor. Defendant brings the case to this court on writ of error.
The assignments of error raise three questions: (1) Whether under the evidence the car was a family purpose car; (2) whether the defendant could be held for her mother's negligence under the family car doctrine; (3) whether the evidence is sufficient under the Colorado guest statute to permit plaintiff to recover. The statute to which reference is made as the guest statute is chapter 118, p. 460 of the Session Laws of 1931, and section 1, so far as here material, is as follows: 'No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a willful and wanton disregard of the rights of others. * * *' Since the cause must be reversed for insufficiency of evidence to show that plaintiff's injuries and damages were proximately caused by negligence of Mrs. Millington, the driver of the car, consisting of a willful and wanton disregard of the rights of plaintiff, it is unnecessary to determine, and we do not determine, whether under the evidence the car was a family car, and if it was, whether defendant could be held for her mother's negligence in operating the car under the family car doctrine.
The evidence, stated in its most favorable light to uphold the verdict and judgment thereon, is substantially as follows: On the return trip Mrs. Millington and the plaintiff arrived at Colorado Springs in the late afternoon where they encountered a snowstorm. The plaintiff described the snow as 'wet and sleety' and the pavement as 'pretty slippery.' She further states that Mrs. Millington had driven all the time Before that down the winding road from Coaldale with reasonable caution, but that after leaving Colorado Springs she was hurrying to get home and drove faster. They stopped at Palmer Lake for a cup of coffee and a sandwich, and to warm themselves. From there Mrs. Millington phoned her daughter, the defendant, informing her that they were at Palmer Lake on their way home, that it was storming very badly, and stated to her: 'If we have a wreck you come and pick us up.' Mrs. Hiedloff did not hear the defendant's reply, but the defendant on croos-examination stated that she told her mother if she could wait or if she felt nervous that she would drive down later and bring her home, but that her mother said she thought she could make it. Mrs. Millington had had several years' experience as a driver, and had been on a number of long trips with the car. The tires on the car were in good condition and not worn. Since negligence is predicated on the excessive speed at which the car was driven, and the testimony of Mrs. Hiedloff is brief, it will be herein set out verbatim.
'Q. Will you state whether you said anything to Mrs. Millington about her method or manner of driving? A. Yes, I asked her not to drive fast, because the pavement was so slick.
'Q. Was that statement of yours based on the speed at which she had previously driven between Colorado Springs and Palmer Lake? A. Yes, I thought she was driving too fast for the condition of the road.
'Q. State exactly what you said to her? A. I said 'Hattie, you had better slow up, because the road is very slippery.'
* * *
* * *
A short distance out of Sedalia Mrs. Millington passed a car. The plaintiff then remarked that she was afraid, and told Mrs. Millington that she ought not to pass the car when the road was slippery, and that the reply to this was, 'Don't be afraid. * * * 'Q. You testified that the windshield was so covered you couldn't see anybody? A. No, I couldn't see, it was so covered with snow.
If from the foregoing evidence reasonable men might draw the conclusion that the injuries and damage to Mrs. Hiedloff were caused by the negligence of Mrs....
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