Opinion
May 8, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1274
Hindry & Meyer, P.C., Gail F. Linn, Charles F. Brega, Denver, for plaintiff-appellee.
Robinson & Henderson, Jack D. Henderson, Denver, for defendant-appellant.
DWYER, Judge.
Plaintiff brought this action for damages for the death of her minor son, Leonard, who was killed while riding as a passenger in an automobile owned and driven by defendant, Isaac Salaz. The fatal collision occurred in Denver, Colorado, on Downing Street, at its intersection with 4th Avenue. Downing is a through street and traffic on 4th Avenue is required to stop before entering the intersection. Defendant, driving west on 4th Avenue, drove his car into Downing without stopping as required by the stop sign. Defendant's car was struck by a truck, and plaintiff's son was fatally injured. Defendant's negligence is undisputed. His defense is that his conduct was simple negligence only, and the plaintiff has no claim because of the Colorado Guest Statute, C.R.S.1963, 13--9--1. The court submitted the case to a jury, and a verdict of $12,700 was returned. Defendant appeals the judgment entered on the verdict. We affirm.
Defendant first contends that the court should have found as a matter of law that Leonard Johnson was a guest, and that the court erred in submitting this issue to the jury.
Both Leonard Johnson and Isaac Salaz were sixteen years old. They lived in the same neighborhood, attended the same high school, and had been friends for some time. Prior to the accident, the boys were both employed at the same restaurant on a part-time basis. Isaac lost his job at the restaurant and was seeking employment. On the morning of the accident Isaac drove his automobile to Leonard's house. The boys then drove to several restaurants and applied for jobs. Before applying at the various restaurants, the boys discussed whether they thought it would be a good place to work. The defendant testified that he asked the decedent's advice and help on the potential places of employment before he determined at which ones he wished to seek work.
The statute defines a guest as a passenger transported without payment for such transportation. Our Supreme Court has recognized that certain non-monetary contributions by the passenger may remove him from the status of guest. In Coffman v. Seifert, Colo., 486 P.2d 422, the court quoted the test set out in Klatka v. Barker, 124 Colo. 588, 239 P.2d 607, which stated:
'(T)he benefit conferred on the owner or operator of the car must be sufficiently real, tangible and substantial to serve as the inducing cause for the transportation.'
'(T)o take a person riding with another out of the guest class two requirements are necessary: (1) an actual or potential benefit in a material or business sense resulting or to result to the owner, and (2) that the transportation be motivated by the expectation of such benefit.'
It has been held that where a passenger is transported in order to render assistance in the securing of employment, such assistance was a sufficient benefit to the driver to render the guest statute inapplicable. Fachadio v. Krovitz, 62 Cal.App.2d 362, 144 P.2d 646; Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330, 274 N.W. 379; Campbell v. Marquis, 112 Ohio App. 50, 175 N.E.2d 106. From the evidence, reasonable men could differ as to whether Leonard's advice and assistance conferred on the defendant a real, tangible, and material benefit so as to serve as the inducing cause for the transportation. Thus, this issue was properly submitted to the jury and the trial court properly refused to rule as a matter of law that the decedent's status was that of a guest.
The defendant's second contention is that the trial court erred in refusing to find as a matter of law that the defendant's conduct was not negligence consisting of willful and wanton disregard of the rights of others. Immediately prior to the collision, defendant was driving west on 4th Avenue. He was lost and unfamiliar with the area. He stated that he was looking for South Carolina Boulevard. Defendant testified that he did not see the stop sign or the intersection.
The defendant testified that he was aware that 4th Avenue was not a through street and that he had encountered other intersections, some of which were controlled by stop signs. The defendant admits that he was negligent, but argues that his negligent act was no more than inadvertence or passive inattention.
Mere inattention or inadvertence does not constitute negligence consisting of willful and wanton disregard of the rights of others. Coffman v. Seifert, Supra; Burrell v. Anderson, 133 Colo. 386, 295 P.2d 1039; Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038. It may well be that the failure to stop at the stop sign in and of itself would not show willful and wanton misconduct, but taken in light of all the attendant circumstances, the evidence, when considered as a whole, could justify the conclusion that the defendant was guilty of willful and wanton negligence. See Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011; Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067. In Sheldon v. Higinbotham, 166 Colo. 387, 444 P.2d 272, our Supreme Court stated:
'The general rule is that where reasonable minds might differ on the question of whether the defendant in a given case is guilty of only simple negligence, or of the wanton and willful conduct necessary to fix liability under the guest statute, the issue should be submitted to the jury and should not be resolved by the trial court as a matter of law. Parker v. Foxworthy, 154 Colo. 455, 391 P.2d 358.'
The court properly submitted the issue of willful and wanton negligence to the jury.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.