Pettingell v. Moede, 17162

• Decision Date: 14 June 1954
• Docket Number: No. 17162,17162
• Citation: 129 Colo. 484,271 P.2d 1038
• Parties: PETTINGELL v. MOEDE.
• Court: Colorado Supreme Court

Page 1038

271 P.2d 1038

129 Colo. 484

PETTINGELL v. MOEDE.

No. 17162.

Supreme Court of Colorado, En Banc.

June 14, 1954.

Petition for Rehearing Stricken July 6, 1954.

January & Yegge and Richard D. Hall, Denver, for plaintiff in error.

Grant E. McGee and Glenn F. Menhennett, Denver, for defendant in error.

CLARK, Justice.

Carol Moede, plaintiff in the trial court, recovered judgment against defendant in a substantial sum following a verdict of the jury in her favor. Her action is for damages for personal injuries incurred by being thrown from a motor vehicle operated by defendant, due, as she alleges in her complaint, to a willful and wanton disregard on the part of defendant of the rights of others including the plaintiff. It admittedly is such an action as comes within the scope of section 371, chapter 16, '35 C.S.A., commonly referred to as the guest statute.

The defendant in presenting the case here pursuant to writ of error, among others, relies for reversal on two grounds: (1) That the trial court should have directed a verdict in defendant's favor for the reason that plaintiff failed to prove 'negligence consisting of a willful and wanton disregard of the rights of others;' and (2) that instruction No. 11 given to the jury by the trial court was erroneous and improper. We shall discuss these points together as, under the circumstances here presented, they are related, and a determination of the first requires consideration of the second.

The facts of the case are not involved and in the main are undisputed, there being conflict with respect only to two or three rather minor and somewhat incidental details.

In the summer of 1951 plaintiff and defendant first became acquainted while both were employes at the Holzworth ranch, located some few miles out of the Town of Grand Lake on the Trial Ridge Road leading toward Denver. Following the summer season, plaintiff returned to her home in Illinois and defendant entered Colorado State A. & M. College at Fort Collins, Colorado. Some few weeks thereafter plaintiff, while on her way to visit relatives residing at Laramie, Wyoming, stopped at Fort Collins and visited defendant, at which time it was arranged that during the coming Colorado deer season defendant would come by Laramie, pick up plaintiff and take her to Grand Lake for a visit there while he hunted deer. Accordingly, on Friday, October 19, 1951, defendant called for plaintiff at Laramie, whence they drove westerly in Wyoming; then southerly through Walden, Colorado; over Willow Creek Pass to Granby; and on to Grand Lake. They encountered some light snowfall on Willow Creek Pass, aside from which the road was dry. During the following Saturday and Sunday a light snow continued to fall and the roads and highways became snow-coated, icy and slippery. At about noon on Sunday it was suggested that, because of the condition of the highways, these young people should get on their way home early in the day, but defendant replied that he expected to continue hunting because he had not gotten his deer. He hunted that afternoon, killed a deer, had supper at the Holzworth Ranch and he and plaintiff started their homeward journey about 8:00 o'clock that evening.

Defendant was driving a 1947 four-wheel drive Willys jeep equipped with what is known as bar-tread snow and mud tires on the rear wheels, and new knobby tires on the front wheels. From the Holzworth Ranch they drove down through the Town of Grand Lake and on to Granby where that highway intersects U. S. Highway 40. At Granby, defendant pulled his jeep up behind a line of cars at a filling station for the purpose of obtaining gasoline, where the station attendant suggested to him that he should put on his chains. Further along the road they came up behind the line of cars on a hill on Highway 40, and upon defendant stopping to ascertain the trouble, learned that the drivers of those cars were putting on their tire chains. He still believed that his jeep would need no chains and proceeded without them. He continued on easterly over Berthoud Pass, upon reaching the top of which, defendant remarked something about having made it without chains. Defendant testified that he came up the westerly side of Berthoud Pass in second gear at a speed of about thirty miles per hour. On reaching the top of the pass he shifted into high gear and began the descent on the easterly side at a speed of thirty-five miles per hour. He had negotiated two hairpin curves without difficulty and then approached a slight curve to the left, but because of the continuing downgrade he felt that he was driving slightly too fast and, in an attempt to slow his speed, stepped on the brake. Immediately he lost control of the jeep which slid in a direct line over a high bank and fell some distance into the rocks and rough coverage of the grade. There was no guard rail at this point and no bank of snow or other obstruction to prevent the car from sliding over the side of the roadway.

At the time of this unfortunate event, plaintiff was twenty years of age, and defendant eighteen. They were on very friendly relations, and during the course of this trip, including the drive that ended so disastrously, they had had no misunderstanding or disagreement of any kind. Apparently they were enjoying the ride together and their conversation was mainly concerning ordinary affairs and light topics of interest. Plaintiff testified that during the trip from Laramie to Grand Lake there could be no criticism of defendant's driving; that from the ranch to Granby on the return trip defendant drove very well; and that in coming over Berthoud Pass that evening, she had no cause for apprehension whatsoever except that she felt that defendant was driving somewhat too fast, but admits that she said nothing to him about it. The mishap occurred suddenly and without previous warning. That plaintiff was seriously injured there is no doubt, nor is the extent of her injuries questioned.

Testimony of the defendant, which was uncontradicted, is to the effect that prior to 1951 he was a resident of Pennsylvania; that he began to learn to drive a car in 1949; procured his first driver's license in 1950; and that previous to this trip he had had practically no experience in driving upon snow-coated and icy roads, particularly in a mountain area.

On behalf of plaintiff it is contended, based upon testimony in the record, that at the ranch, the folks there insisted upon these young people starting home early in the day; that defendant was urged to put on chains, and plaintiff testified that the reason she said nothing to defendant about fast driving was because, on a former occasion during the summer, when she had remonstrated with him on the topic of speed, he had become stubborn and refused to reduce his speed; that he was 'buillheaded.' Defendant admits that there were suggestions at the ranch that they leave early, but denies any one insisted upon them doing so. He had gone there for the purpose of killing a deer and he did not wish to leave without one. He also admits that the filling-station man at Granby suggested he put on chains, but with the tires with which his car was equipped, he felt that he did not need them. He denies that plaintiff had ever remonstrated with him for driving too fast during the preceding summer or at any time, or had in any way criticized his driving. These incidental items are the only points where there is even the slightest conflict in the evidence.

Are the foregoing facts, viewed in the light most favorable to the plaintiff, sufficient to support a verdict in her favor under the guest statute? Where the testimony is not in conflict and essential facts uncontroverted, it becomes first the duty of the court to conside whether the evidence is sufficient, as a matter of law, to support a verdict before submitting the case to a jury. If it appears clear that the law is such that the evidence presented is insufficient, it is the duty of the court to direct a verdict; if, on the other hand, the evidence is such that reasonable minds might draw different conclusions therefrom, it is proper that a jury decide the issue. Having the facts before us, let us now examine the law.

The portion of the statute here applicable reads 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. * * *' '31 S.L., chapter 118, § 1, page 460.

It immediately is apparent that by the statute three instances are specified where the driver of a vehicle may be liable to his guest: (1) Intentional accident; (2) accident caused by the driver's intoxication; and (3) 'by negligence consisting of a wilful and wanton disregard of the rights of others.' (Emphasis supplied.) The language of the statute is unfortunate in at least two particulars, the first of which is intentional accident. It immediately is clear that where one intentionally wrecks a motor vehicle, that is no accident. With this, however, we are not here concerned, nor with the question of intoxication, as there is no claim or contention in this case that defendant had been drinking to any extent whatsoever. Our problem here deals entirely with the third provision of the statute, 'by negligence consisting of a wilful and wanton disregard of the rights of others.' This question has been before our Court many times. Notwithstanding that we said in Foster v. Redding, 97 Colo. 4, 7, 45 P.2d 940, 941, that this phrase presents no serious problem, that it seems self-evident, and that 'attempts at further definition involve the risk of explaining 'what seems...