Opinion
Rehearing Denied March 30, 1971.
Michael A. Laden, Denver, for plaintiffs in error.
Wormwood, Wolvington, Renner & Dosh, Charles M. Dosh, Robert C. Miller, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as they appeared in the trial court. The plaintiff, Berta B. Shaw, was injured while riding as a guest in an automobile owned and driven by the defendant, Ursula K. Johnston. In this action she sought to recover damages for her injuries. Her husband, James Shaw, sought to recover damages for loss of consortium. At the close of plaintiff's evidence, the trial court directed a verdict in favor of the defendant, and the plaintiffs by this writ of error seek reversal.
Plaintiffs contend that their evidence established a prima facie case of willful and wanton negligence, which the court was required to submit to the jury.
The only witnesses who testified at the trial were the defendant, who was called as an adverse witness, and the patrolman who investigated the accident. Defendant testified that in the afternoon of October 13, 1967, she and the plaintiff, Berta B. Shaw, left Denver for a sightseeing trip in the mountains. They stopped at a restaurant near Central City where they spent about three hours visiting and eating lunch. During this time each of them drank three bottles of beer. They then drove to Georgetown where each of them had another bottle of beer before leaving for Denver at about 6:30 p.m. The accident occurred on a service road outside of Georgetown when defendant lost control of the car and it left the highway. Defendant said she was driving at the posted speed limit of 45 miles per hour just before the accident. She said she was suddenly confronted with a sharp curve, the end of the paved road, and a warning sign reading 'Pavement Ends.' She was unable to negotiate the curve and the car left the highway.
The highway patrolman testified that although the posted speed limit was 45 miles per hour, it was his opinion that the safe speed at the curve where the accident occurred is 25 miles per hour. The officer further testified that, in his opinion, the road at the scene of the accident constituted a dangerous condition and the warning signs were inadequate for the dangerous condition that then existed.
Plaintiffs' action is one within the purview of the Colorado Guest Statute, C.R.S.1963, 13--9--1, and plaintiffs cannot recover upon proof of simple negligence only. In order to establish a prima facie case against defendant, it was incumbent upon plaintiffs to establish either 'intoxication' or 'willful and wanton negligence' on the part of defendant.
Plaintiffs alleged in their complaint that the accident was caused by the defendant's intoxication, but the evidence at trial did not support this allegation. Plaintiffs did not claim in their motion for new trial, and they do not assert here, that the case should have been submitted to the jury on the theory that the accident was caused by the defendant's intoxication. Plaintiffs' contention is that the facts and circumstances in evidence, including the evidence of defendant's drinking, were sufficient to prove, prima facie, that defendant's actions constituted willful and wanton negligence.
Plaintiffs rely heavily on the fact that defendant admitted that she was a little tired and exhausted. The defendant testified, however, that she was no more tired and exhausted than anyone else would be after driving all day in the mountains. She said that she was not sleepy and that she would not have driven the car if she thought there were any chance that she would go to sleep on the highway, and there is no evidence that she fell asleep before the accident.
The evidence, considered most favorably to the plaintiffs, fails to establish a prima facie case of willful and wanton negligence. There is no evidence in the record that the defendant purposefully committed any act which she knew was dangerous to others and which she, nonetheless, performed heedlessly without regard to the consequences and the rights and safety of others. In the absence of such evidence, her actions did not constitute negligence consisting of 'a willful and wanton disregard of plaintiff's rights,' within the meaning of the guest statute. See Burrell v. Anderson, 133 Colo. 386, 295 P.2d 1039; Graham v. Shilling, 133 Colo. 5, 291 P.2d 396; Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038; Millington v. Hiedloff, 96 Colo. 581, 45 P.2d 937.
Plaintiffs also assert that the court erred in refusing to permit an expert to state his opinion concerning the speed of defendant's vehicle. In the presentation of the case plaintiffs called an accident reconstruction expert. In proceedings outside the presence of the jury, it appeared that the expert was qualified in this field. Plaintiffs proposed to elicit from the expert his opinion as to the speed of defendant's car on the basis of a hypothetical question. The hypothetical question which plaintiffs' counsel proposed to ask required the expert to assume facts which were not in evidence. Such a hypothetical question may not be propounded to an expert. Enyart v. Orr. 78 Colo. 6, 238 P.2d 29. The trial court properly sustained defendant's objection to the question.
Plaintiffs also assert that the trial court erred in refusing to admit into evidence a statement signed by the defendant. The statement was taken by an investigator employed by plaintiffs and was signed by the defendant. Plaintiffs attempted to introduce this statement into evidence during the course of the cross-examination of defendant. The trial court ruled that the statements of fact contained in the statement were not inconsistent with defendant's testimony. It further ruled that the conclusions contained in the statement were inadmissible and in so ruling relied upon Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377, and Bashor v. Bashor, 103 Colo. 232, 85 P.2d 732. The cases relied upon by the trial court support its ruling, and the court was not in error in refusing to admit the statement.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.