Opinion
Aug. 11, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 989
Yegge, Hall & Evans, Wesley H. Doan, William F. Dressel, Denver, for plaintiff in error.
Williams, Trine & Greenstein, Morris W. Sandstead, Jr., Boulder, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This action is for damages for personal injuries sustained by plaintiff while riding as a passenger in a motor vehicle operated by the defendant. The car left the highway and struck a tree, due, as plaintiff alleges, to defendant's negligence consisting of a willful and wanton disregard on the part of defendant of the rights of others, including the plaintiff. Zeiler as plaintiff in the trial court, recovered a judgment against defendant, Pomeroy, in the amount of $5,000, following a jury trial.
This action is one within the scope of C.R.S.1963, 13--9--1, commonly referred to as the guest statute. Defendant, relying on this statute, asserts that plaintiff has no 'cause of action' because the evidence was insufficient, as a matter of law, to constitute negligence consisting of a willful and wanton disregard of plaintiff's rights. This defense was presented by motion for summary judgment and by motion for directed verdict at the trial. The trial court denied both motions, and the defendant contends that such rulings were in error.
The facts in the record, considered most favorably to the plaintiff, are sufficient to support the verdict in plaintiff's favor under the guest statute, and the judgment is accordingly affirmed. Lambrecht v. Archibald, 119 Colo. 356, 203 P.2d 897.
The accident occurred in Boulder, Colorado, on the evening of October 27, 1965. Plaintiff and defendant were students at the University and had spent the evening in the 'Hill area.' They were driving to their apartment in a sports car operated by defendant. Plaintiff sat in the luggage compartment behind the seats. Defendant was stopped for a signal light at an intersection when he noticed another sports car in the lane next to him. While defendant was driving at a high rate of speed in an attempt to overtake the other car, he entered a sharp curve on Arapahoe Street near the entrance of Boulder Canyon. Defendant was unable to negotiate the curve, went into a skid of over one hundred feet, then into a broadside skid of another one hundred fifteen feet, left the road and smashed into a tree. There was testimony that defendant knew that the curve was ahead; knew that it was dangerous; and knew that he would have difficulty negotiating the turn at the speed he was traveling. There was testimony that, although the parties had planned to stop at their apartment, defendant proceeded beyond this destination stating that, '(H)e was going up the canyon to teach these guys a lesson.'
Defendant's conduct constituted negligence consisting of a willful and wanton disregard of the rights of others as that term has been defined by our Supreme Court. In Brown v. Spain, Colo., 466 P.2d 462, it was held that a person is guilty of willful and wanton disregard when he is conscious of his misconduct, and from his knowledge of surrounding circumstances and existing conditions is aware that his conduct, in the natural sequence of events, will probably result in injury to his guest and is unconcerned over the possibility of such result.
Defendant's motion for summary judgment was based upon his affidavit and upon the deposition of the plaintiff. The court properly denied this motion because the affidavit and the deposition disclosed the existence of a genuine issue of fact concerning whether or not defendant's conduct was 'willful and wanton.' This issue required determination by the trier of the facts. O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227.
The original action filed by plaintiff contained a claim for relief against the driver of the other sports car. At the conclusion of the plaintiff's evidence, the trial court directed a verdict against plaintiff on this claim. The defendant Pomeroy contends that he was prejudiced by this action. His defense that he was not negligent, and that the proximate cause of the accident was the negligence of the driver of the other car, remained an issue in the case and was submitted to the jury under proper instructions. There is no basis in the record to support defendant's contention that he and the driver of the other sports car were joint tort-feasors. Under the circumstances, defendant has no basis to complain of the dismissal of the other driver.
The defendant also contends that the court erred in prmitting a highway patrolman to testify as to the speed of the vehicles at the time of the accident, and as to the safe speed for this curve. The officer testified that he had been on the Colorado State Patrol for six and a half years; that he had been trained by the highway patrol to investigate accidents; that he had investigated between 800 and 1,000 accidents; and that he had driven over the curve in question many times and was very familiar with it. He based his estimate of the speed of the defendant's car on the tire marks on the road and his own knowledge of the maximum safe speed for the curve, which he stated was thirty miles per hour.
The Supreme Court has, on several occasions, upheld the ruling of a trial court where a law enforcement officer was held to be qualified as an expert and was allowed to give opinion testimony as to the speed of a motor vehicle based on skid marks and other physical facts. Starkey v. Bryan, Colo., 441 P.2d 314; Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571; Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229.
In other cases, the Supreme Court has upheld the trial court's ruling that such officers were not so qualified. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659; Baldwin v. Schipper, 155 Colo. 197, 393 P.2d 363.
Thus, the sufficiency of the evidence to establish the qualifications and knowledge of the law enforcement officer to entitle him to express an opinion of the speed of a motor vehicle based upon physical facts which he has observed is a question to be determined by the trial court and its decision will be upheld unless clearly erroneous. Starkey v. Bryan, Supra.
The judgment is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.