Opinion
Dec. 19, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 355
Beal & Wilson, Leonard L. Beal, Lakewood, for plaintiffs-appellees Hugh John and Mildred L. Hickey.
Williams, Trine & Greenstein, P.C., William A. Trine, Boulder, R. Jerry Russell, Broomfield, for plaintiffs-appellees Donald R. and Frances C. Doran.
Flowers & Creamer, James W. Creamer, Denver, for defendants-appellants.
ENOCH, Judge.
This personal injury action arose from an automobile-train collision on August 24, 1970, in which a minor, unlicensed driver was injured and two minor passengers were killed. A wrongful death action was brought in the Adams County District Court by the parents of the two deceased children, Steve Doran and Kathy Hickey, against James Elza Jensen (Jay), the minor driver, and James W. Jensen, Jr. (Mr. Jensen), his father. Judgments were entered on jury verdicts rendered against both Jensens in favor of the Dorans for $12,038.20 and the Hickeys for $11,002. Defendants appeal these judgments and assign four points of error.
The facts of the case are as follows: Mr. Jensen, divorced, had temporary custody of his five minor children for the summer months of 1970. While working at his daily job in Boulder, he left the children at his home in Broomfield with Jay, age 15, and his sister, one year older, in charge of overall supervision of the household. Mr. Jensen owned a 1963 Volkswagen automobile. He did not use it regularly, and it was left at the house while he was at work. He had one key to the vehicle on his person, and another key which had belonged to his former wife was hidden in a bedroom closet. Unknown to Mr. Jensen, Jay and his sister had had a duplicate key made. With this key they and their friends frequently drove the vehicle around Broomfield and to the surrounding communities without the apparent knowledge or approval of Mr. Jensen. On one occasion prior to the accident in question Mr. Jensen learned that the children and friends had been driving the car, and he at that time reprimanded his children and specifically forbade them to continue to drive the car. There was also evidence that the vehicle was not in good mechanical condition and that the engine had a tendency to falter upon acceleration from a stop.
On the day of the fatal accident, while Mr. Jensen was at work, Steve and Kathy volunteered to accompany Jay on a car trip to buy some posters. At one point in the journey they came to a railroad crossing controlled by a stop sign. Jay did not observe the stop sign until he was almost parallel with it. He applied the brakes and managed to stop the car, but the front bumper came to rest extending over the first rail in the railroad bed. Jay claims that he and his passengers first observed that a train was approaching after the vehicle had come to the stop. Jay panicked and without shifting from third gear to first pressed the accelerator. The car jerked slightly forward and stalled in the middle of the track. The engine crew, who had observed the Volkswagen's approach to the crossing and its subsequent stall, activated emergency stopping procedures, but the train nevertheless struck the automobile.
I.
Defendants first claim that the court erred in its ruling that Mr. Jensen should be held to a standard of only ordinary negligence and in failing to grant his motion for a directed verdict. Mr. Jensen claims that he is not subject to such a standard and that his liability, if any, must be based on a determination that he was willfully and wantonly negligent. We agree.
Our Supreme Court has held:
'A guest injured while the automobile is being operated by one other than the owner thereof can recover from the owner only upon proof of willful and wanton disregard of the rights of others on the part of the owner, and such must be the proximate cause of the injury. The burden of proving this is upon the plaintiff in such action.' Graham v. Shilling, 133 Colo. 5, 291 P.2d 396.
Therefore Mr. Jensen could not be held liable on the proof of only ordinary negligence. It was incumbent upon plaintiffs to prove that he was guilty of conduct amounting to a willful and wanton disregard of the rights of others.
It is not disputed that Jay, as operator of his father's automobile, is liable for damages only upon proof that his negligence was willful and wanton under the guest statute. C.R.S.1963, 13--9--1. Whether Jay is liable under the statute, however, is not determinative of whether his father is liable, because the driver's negligence cannot be imputed to the owner on the basis of ownership alone. Graham v. Shilling, Supra. Moreover, a child's negligence in the operation of his parent's automobile cannot be imputed to the parent on the basis of that relationship alone. For the parent to be liable the parent must have given his consent, either express or implied, to the general use of the car, or his express consent to the use of the car on the particular occasion. Vick v. Zumwalt, 130 Colo. 148, 273 P.2d 1010. Such were not the facts in this case. Mr. Jensen, as owner of the automobile, could be held liable only if his own negligence was willful and wanton.
Plaintiffs offered evidence to the effect that Mr. Jensen was negligent in failing to provide supervision for his children, in not securing the vehicle in some manner so that it could not be used, in not keeping the vehicle in good mechanical condition, in having taught Jay to drive the car before Jay was of licensable age, and in having allowed Jay to drive in his presence on prior occasions.
Though these acts may constitute simple negligence, the facts must show more than mere negligence. We find no evidence in the record that Mr. Jesen showed any willful and wanton disregard for the rights of others as that conduct is defined in Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038. The court therein defined willful as meaning voluntary; by choice; intentional; purposeful, and it held that wantoness signified an even higher degree of culpability in that it is wholly in disregard of the rights, feelings and safety of others.
Plaintiffs neither alleged nor proved any willful or wanton conduct on the part of Mr. Jensen, and the court erred in ruling that Mr. Jensen could be found liable on the proof of only simple negligence. Therefore, it was error for the trial court not to have directed a verdict in favor of Mr. Jensen.
II.
Defendants further allege that the court erred in failing to instruct the jury as to defendants' defense of assumption of risk. We agree.
The court did instruct the jury as to defendants' defense of contributory negligence. In that instruction the court said that Kathy and Steve were 'under a duty to keep a proper lookout for oncoming trains,' and that failure to do so would constitute contributory negligence. There was evidence to this point, and the jury properly was given the task of evaluating the evidence.
Plaintiffs argue that the defenses of contributory negligence and assumption of risk are overlapping and that instructions on both are unnecessary. A case cited by plaintiffs is Bennett v. Gitzen, 29 Colo.App. 271, 484 P.2d 811, where this court stated as dictum that 'instructions as to both doctrines May be overlapping and unnecessary.' (Emphasis supplied.) We can find no Colorado law to the effect that the doctrines are always mutually exclusive.
The instances of overlapping result from situations where the evidence offered to support one of the two defenses is also offered to support the other. This is the case in Arapahoe Basin, Inc. v. Fischer, 28 Colo.App. 580, 475 P.2d 631, and Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658, which are both cited by plaintiffs in support of their theory. We find from the review of the record of the case at hand that the evidence offered by defendants in support of their defense of assumption of risk is not identical to that offered to support contributory negligence. Testimony revealed that it was probable that Kathy and Steve both knew that Jay was unlicensed and inexperienced and that the car was in faulty mechanical condition. It was shown that Kathy had, and Steve probably had, driven the Volkswagen prior to the accident. Although that evidence may be short of that required to sustain a directed verdict in defendants' favor, the evidence is sufficient to go to the jury for its determination of the issue, and the court erred in not instructing the jury on the defense of assumption of risk. III.
Defendants next contend that 'the trial court erred in determining that plaintiffs sufficiently proved willful and wanton conduct on the part of (Jay).'
The trial court made no such finding as a matter of law, but it did find that sufficient evidence had been presented for the question to go to the jury. See Sheikh v. Bach, 169 Colo. 10, 452 P.2d 762. Examination of the record reveals the commission of no error in this regard.
IV.
Defendants also assert that the trial court erred in instructing the jury that Jay, as a driver, should be held to the same standard of care as that of an adult. We find no merit in this contention.
The court used the wording of Colorado Jury Instructions 11:5 in advising the jury as to Jay's duty of care. That instruction reads as follows:
'A minor operating a motor vehicle has the same duty of care as an adult under the same circumstances and the fact that the operator is a minor does not in any way diminish that duty of care.'
The Colorado Rules of Civil Procedure state that:
'In instructing the jury in a civil case, the court shall use such instructions as are contained in Colorado Jury Instruction (sic) (CJI) as are applicable to the evidence and the prevailing law.' C.R.C.P. 51.1(1).
Colorado has no cases on the duty of care generally owed by a minor driver, and there is a split in authority among other jurisdictions. Annot., 97 A.L.R.2d 872. A split also exists in regard to the standard for judging the conduct of a minor charged with willful and wanton negligence under a guest statute. Annot., 97 A.L.R.2d 861. We conclude, however, that the instruction in the case at hand, being based upon Colorado Jury Instructions 11:5, was properly given by the trial court as the applicable rule of law.
Judgment reversed and cause remanded with directions to dismiss the complaint as to James W. Jensen, Jr., and to grant a new trial against James Elza Jensen.
COYTE and DWYER, JJ., concur.