Murrow v. Whiteley

• Decision Date: 21 April 1952
• Docket Number: No. 16556,16556
• Citation: 244 P.2d 657,125 Colo. 392
• Parties: MURROW et al. v. WHITELEY et al.
• Court: Colorado Supreme Court

Page 657

244 P.2d 657

125 Colo. 392

MURROW et al. v. WHITELEY et al.

No. 16556.

Supreme Court of Colorado, en Banc.

April 21, 1952.

Rehearing Denied May 12, 1952.

Joseph P. Constantine, Denver, for plaintiffs in error.

David J. McKee, Denver, for defendant in error Harriet Whiteley.

ALTER, Justice.

Montford S. Whiteley and Harriet Whiteley, plaintiffs below, appearing here as defendants in error, brought an action against James Murrow and Gerald J. Robinson, defendants below and plaintiffs in error here, to recover judgments for damages resulting from an accident while passengers in an automobile owned by James Murrow and driven by Gerald J. Robinson. At the trial, on motion of Montford S. Whiteley, the action as to him was dismissed, and the jury returned its verdict in favor of Harriet Whiteley in the sum of $1,082; appropriate judgment was entered, to reverse which the cause is brought here by writ of error.

Harriet Whiteley, by cross specification of points, complains of the inadequacy of the damages awarded her, and seeks an order remanding the cause for retrial on the question of damages only.

We will herein refer to Harriet Whiteley as plaintiff; to James Murrow as Murrow and to Gerald J. Robinson as Robinson or defendants.

It is alleged in the complaint that about 2:30 o'clock A. M., on September 21, 1948, Murrow and Robinson and a lady were proceeding easterly from Broomfield in an automobile on their way to Denver, Murrow being the owner of the automobile, and Robinson, with Murrow's consent, being the driver thereof. Shortly after they left Broomfield plaintiff became a passenger in the automobile. Murrow and Robinson were both intoxicated, and an accident occurred while Robinson was operating the automobile allegedly in a negligent manner, consisting of a wilful and wanton disregard of the safety of plaintiff. Plaintiff suffered great physical pain and permanent physical disabilities and incurred expenses for medical treatment and hospital care, for which she sought judgment in the sum of $382 for loss of income; $15,000 for pain, suffering and permanent injuries; $700 for medical and hospital bills, and exemplary damages in the sum of $10,000.

Defendants in their answer admit that they were traveling in the automobile at the time and place mentioned, with Robinson as the driver, and Murrow being the owner thereof, and at the time and place as alleged by plaintiff she became a passenger in the automobile. They deny each and every other allegation in the complaint. For a second defense they alleged that the injuries incurred were the result of plaintiff's contributory negligence; for a third and further defense it is alleged that at the time and place mentioned in the complaint plaintiff was 'hitchhiking'; requested transportation from near Broomfield, Colorado; and assumed all risks in connection with her transportation. For a fourth and further defense they alleged that plaintiff and her husband were both intoxicated and assumed all risks in requesting transportation; and for a fifth defense it is alleged that plaintiff, by the exercise of reasonable precaution, knew or should have known of Robinson's intoxication, and, by continuing as a passenger, she was guilty of contributory negligence and assumed all risks.

Plaintiff's evidence is to the effect that about midnight on September 20, 1948, she and her husband had been in Boulder and were returning to Denver with a friend or acquaintance, who, because of some words or attitude of his, aroused resentment in plaintiff's husband, and they left the automobile at some point east of Broomfield. While standing at the side of the road, Murrow, in his automobile, passed them a distance of several yards, then stopped and returned to them, and someone in the car asked plaintiff and her husband if they were on their way to Denver and wished to ride. An affirmative answer was given. According to plaintiff and her husband, there was a lady in the front seat of the automobile, sitting between Murrow and Robinson, and in the back seat was an elderly man, who, immediately upon plaintiff and her husband being seated in the automobile, offered them a drink of whiskey from a bottle which he had in his possession. They declining to partake, the bottle was passed to the two men in the front seat, each of whom took a drink therefrom. Almost immediately thereafter the accident occurred. The car was being driven at an excessive rate of speed, and within a short distance ran through a stop sign, and into a northerly and southerly main highway. In the effort to stop the car it was overturned, with resulting injuries to plaintiff.

At the junction where the accident occurred was a cafe operated by Mr. and Mrs. Cell. At the trial Mr. Cell testified that upon being aroused by a passing motorist, he immediately went to the scene of the accident to render whatever assistance was necessary. At the scene of the accident he found plaintiff and her husband, Robinson, Murrow, and a lady. He noticed that Robinson was unsteady in walking; he detected the odor of intoxicating liquor on his breath; but was unable to say whether it was beer or whiskey. He found a 'fifth of whisky' that had been thrown about twenty- -five feet from the car, about a third full of the liquor. When he brought this bottle back to the car, someone said, 'I see you have found the evidence.'

Mrs. Cell testified that she served coffee to Murrow, Robinson and the young lady, and detected the odor of liquor on the breaths of one or more of them.

Mr. Green, another witness, who lived near the scene of the accident, testified that almost immediately after it occurred he was at the scene, and, so far as he could tell, 'they was pretty well all polluted.' That is, all but plaintiff, who then was in the wrecked car.

Mr. Crews, a courtesy patrolman, arrived at the scene of the accident about twenty-five minutes after it occurred. He testified that he could smell liquor on the breath of Murrow and Robinson, and that Robinson's ability to operate an automobile had been greatly impaired by imbibing intoxicating liquors; that Mr. Robinson apparently was more intoxicated than Murrow; their walk was unsteady; and their speech slurred. This witness further testified that he took measurements at the scene of the accident, and that from the point where the first skid-marks appeared it was seventeen feet easterly of the stop sign, and that the marks were plainly discernible for 128 feet. The car ran into a small ditch and landed in a deep irrigation ditch, where it came to rest.

Plaintiff and her husband both testified that immediately after they were seated in the car the driver drove very rapidly. She became alarmed and complained to her husband about the speed at which the car was being driven and the intoxication of the menfolks in the car. He husband told her to remain quiet until they reached the stop sign, where they could alight, and he could phone from the cafe for a taxicab.

Plaintiff, as a result of the injuries received in the accident, was confined in a hospital for eleven days; placed in a cast from her shoulders to her hips, which she was obliged to wear for three months; and thereafter wore a brace until July, 1949; at the time of the trial she still wore the brace when fatigued; lost her salary as an instructor of nurses for a period of more than six weeks. She incurred doctor expenses in the sum of $700 or more, and hospital, medical and incidental expenses in excess of the sum of $382. According to the undisputed testimony of one or more physicians, her permanent disability resulting from injuries incurred in the accident is thirty per cent.

Defendants and their lady passenger denied that there had been any man in the rear seat with a bottle; that any of them had had any liquor since 9 o'clock; and that at that time they had taken only a moderate amount of 3.2 beer; denied their intoxication; and testified that the car was being driven betwen fifty and sixty miles an hour; alleged that the accident was occasioned because of an automobile approaching them with bright lights, thus blinding Robinson so that he was unaware of the stop sign, and in his effort to stop the car upon learning of the stop sign, it skidded from the highway, coming to rest in a ditch, as testified by the courtesy patrolman.

At the conclusion of plaintiff's evidence, defendants moved for a dismissal of her action based upon three grounds: (1) Remaining in the automobile after she discovered the intoxication of the driver; (2) the assumption of risk based upon the ground that she knew or should have known when she entered the automobile that the driver thereof was under the influence of intoxicating liquor, and continued without protest to ride therein; (3) 'that Harriet Whiteley has failed and refused to show that she was a guest in the automobile.' These motions were denied.

At the conclusion of all of the evidence defendants interposed a motion for 'nonsuit' based upon the grounds set forth in their motion for dismissal. This motion also was denied.

The specifications of points are seven in number and may be summarized as follows: The court's refusal to grant defendants' motions to dismiss or for directed verdict; (2) failure 'to rule that the said Plaintiffs were not guests as contemplated by the 'Guest Statute' of the State of Colorado'; (3) instructions given or refused.

1. There was competent evidence before the jury that defendants were intoxicated and that Robinson, being intoxicated, drove the automobile in such a negligent manner as to evidence a wilful and wanton disregard of the safety of plaintiff, and that the intoxication and wilful and wanton disregard of plaintiff's safety was the proximate cause of the accident resulting in her injury. No error was committed by the trial court in denying defendants' motions.

2. We call attention to the fact that section 371, chapter 16, '35 C.S.A., omits...