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Taylor v. Welle

Supreme Court of Colorado. En Banc
May 9, 1960
352 P.2d 106 (Colo. 1960)

Summary

noting that prior to enactment of the Wrongful Death Act, "there was no common law right of recovery against one who tortiously caused the death of another"

Summary of this case from Aberkalns v. Blake

Opinion

No. 18,587.

Decided May 9, 1960. Rehearing denied May 31, 1960.

Action for wrongful death resulting from automobile collision. Judgment for defendants.

Affirmed.

1. AUTOMOBILES — Highway — Warning Light — Duty of Driver. A warning ahead on the highway should put the driver of an approaching vehicle on notice that a potentially dangerous condition exists ahead and that he must be ready and able to bring his car to a complete stop if suddenly called upon to do so.

2. Negligence — Guest — Collision — Conduct of Driver. Where driver of a car in which plaintiff's intestate was riding as a guest failed to observe a warning flare in the highway ahead and failed to stop in time to avoid colliding with car ahead, his conduct amounted to nothing more than simple negligence.

3. Guest Statute — Death Claim — Common Law. Prior to the enactment of the wrongful death statute (C.R.S. '53, 41-1-1, et seq.) there was no common law right to recovery, the statute creating the only right under which recovery for wrongful death was possible.

4. Guest Statute — Wrongful Death. There being no recovery for wrongful death except under the provisions of C.R.S. '53, 41-1-1, et seq., the Guest Statute (13-9-1) precludes recovery for death except under the conditions therein specified.

Error to the District Court of the City and County of Denver, Hon. Edward J. Keating, Judge.

Messrs. LEE, BRYANS, KELLY STANFIELD, Mr. ROBERT F. THOMPSON, Mr. FRED L. WITSELL, JR., for plaintiff in error.

Messrs. WORMWOOD, O'DELL WOLVINGTON, for defendant in error Richard K. Welle.

Mr. LOWELL WHITE, Mr. WALTER A. STEELE, for defendants in error Galen D. Hutcherson.

Messrs. YEGGE, BATES HALL SHULENBURG, for defendant in error Edward C. Reish.


ON October 1, 1955, Charles W. Taylor was fatally injured in an automobile accident. His widow, Sara E. Taylor, subsequently filed the instant action against the drivers of the three automobiles involved in the accident to recover damages incurred as a result of his allegedly wrongful death. At the conclusion of plaintiff's case, the trial court granted motions to dismiss the complaint against all three defendants and directed a verdict in their favor. The primary issue here presented in whether the dismissals constituted error.

The accident occurred near Monument, Colorado, on U.S. Highway 85-87, about one-tenth of a mile north of where it intersects with Colorado Highway 50. It was approximately 7:00 P.M. and was quite dark.

Defendant Hutcherson was driving the first car. Immediately behind him in the same lane of traffic was defendant Reish's car, followed by defendant Welle's car, in which the decedent was riding as a guest. These three vehicles were in heavy stream of traffic south-bound towards Colorado Springs. All the automobiles involved were traveling at approximately forty-five miles per hour, a speed fifteen miles per hour the then posted speed limit to sixty. It is not disputed that Taylor was a guest within the meaning of the Colorado Guest Statute, C.R.S. '53, 13-9-1.

Some time before the accident occurred a fourth vehicle, driven by one Michael B. Mahoney, had, for some unknown reason, left the highway at the aforementioned intersection, went into the borrow pit on the west side of the highway and crashed into a culvert. An officer of the Colorado Courtesy Patrol had placed a bright red flare on a guard post at the scene of that accident to warn approaching traffic of the Mahoney accident. Neither the latter vehicle nor the flare were on the paved portion of the highway. It appears that the flare was visible from the curve at the top of Monument Hill to one who would be looking that far ahead and towards the south. This was approximately a mile away from the Mahoney car.

As the cars in question approached the intersection the traffic in front of the Hutcherson vehicle came to a sudden stop. Hutcherson applied his brakes and also came to a stop suddenly but without skidding. After he had come to a complete halt the Reish vehicle collided with the rear end of Hutcherson's car.

Reish was not available to testify the trial. Testimony of eye witnesses indicates that immediately upon the seeing the Hutcherson vehicle stopping in front of him Reish jammed on his brakes. There were 49 feet of skid marks between the point where he applied his brakes and the point of impact. The evidence is not clear whether he had managed to come to a complete stop before his car hit Hutcherson's. However, either as he stopped before striking the Hutcherson vehicle, or at least when almost stopped, he was struck from the rear by the Welle car. In any event the impact of Welle's car pushed Reish's vehicle violently forward, causing it to collide with great force with the rear of the Hutcherson car in front of it.

The Welle vehicle laid down 83 feet of skid marks up to the point of impact. While skidding it had turned sideways so that at the point of collision its right rear fender struck the rear of the Reish vehicle. This forced open the right front door of the Welle vehicle, throwing the decedent out and to the pavement, resulting in his fatal injuries.

Plaintiff bases her claims for relief against Hutcherson and Reish upon allegations of simple negligence. The claim for relief against Welle is based upon two grounds: (1) It is alleged that Welle acted "negligently and in wilful and wanton disregard for the rights of others," thereby removing him from the protection of the Colorado Guest Statute; and (2) in the alternative, it is urged that if Welle is deemed guilty of only simple negligence, the Colorado Guest Statute is unconstitutional. Plaintiff also urges that her statutory claim for relief under the Wrongful Death Statute, C.R.S. '53, 41-1-1 et seq., is independent of, and has not been modified by, the Guest Statute, C.R.S. '53, 13-9-1.

We do not here attempt to discuss the constitutional issues presented for they have been resolved by the decision of this court in Vogts v. Guerrette, No. 18,834, decided this date.

Plaintiff's claims for relief against the drivers of the first two cars, Hutcherson and Reish, are based upon her allegation that they were negligent in failing substantially to reduce their speed when they saw or could have seen the red warning flare several hundred yards in front of them and off to their right. She assumed that if this had been done that Welle's vehicle would also have slowed up and the accident might not have occurred.

Although in some circumstances a prudent driver of an automobile might automatically reduce his speed when he sees a warning flare some distance away, we cannot agree that the failure to do so, under the facts here presented, constitutes sufficient evidence of negligence on the part of Hutcherson and Reish to warrant submitting the question of negligence to the jury.

A warning light ahead on the highway should put the driver of an approaching vehicle on notice that there is a potentially dangerous condition ahead, and that he must be ready and able to bring his car to a complete stop if suddenly called upon to do so. Such was the case here. However, the evidence is clear an uncontradicted that Hutcherson did have sufficient control of his vehicle to bring it to a complete stop. Also there is no evidence that Reish did not or could not have stopped his car in adequate time to have avoided an accident. Apparently Welle was the only person involved in the collision who did not have sufficient control of his vehicle to stop when presented with an emergency condition. His failure to do so was the proximate cause of the accident and resultant fatal injury to the decedent. Thus as to both Hutcherson and Reish the motions to dismiss were properly granted.

We must next consider whether under the facts as related here Welle was guilty of such wilful and wanton conduct as to remove him from the protection of the Guest Statute. In this regard we must conclude that Welle's conduct amounted to nothing more than simple negligence and that no wilful and wanton conduct on his part was shown by plaintiff. This being so, no jury question was presented and the motion to dismiss as to Welle was also properly granted.

Plaintiff's contention that the Wrongful Death Statute created a right of action independent of the Guest Statute and is not subject to the limitations the latter imposes, is unacceptable. The Colorado Wrongful Death Statute was enacted in 1872. Prior to its enactment there was no common law right of recovery against one who tortiously caused the death of another. The Wrongful Death Statute created a new cause of action which did not therefore exist. It created the only right under which such recovery was possible.

The Guest Statute was enacted in 1931. It provides in pertinent part:

"13-9-1. 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 * * *." (Emphasis supplied.)

There being no recovery for death except under the provisions of the Wrongful Death Statute, and the Guest Statute specifically precluding recovery for death except under the conditions therein specified, the Guest Statute must be held to apply to and limit recovery under the Wrongful Death Statute.

The judgment is affirmed.

MR. JUSTICE HALL specially concurs.

MR. JUSTICE KNAUSS not participating.

MR. JUSTICE FRANTZ dissents.


Summaries of

Taylor v. Welle

Supreme Court of Colorado. En Banc
May 9, 1960
352 P.2d 106 (Colo. 1960)

noting that prior to enactment of the Wrongful Death Act, "there was no common law right of recovery against one who tortiously caused the death of another"

Summary of this case from Aberkalns v. Blake

noting that prior to the enactment of the Wrongful Death Act, there was no common law right of recovery against one who tortiously caused the death of another, such that there is "no recovery for death except under the provisions of the Wrongful Death Statute"

Summary of this case from Steedle v. Sereff
Case details for

Taylor v. Welle

Case Details

Full title:SARA E. TAYLOR v. RICHARD K. WELLE, ET AL

Court:Supreme Court of Colorado. En Banc

Date published: May 9, 1960

Citations

352 P.2d 106 (Colo. 1960)
352 P.2d 106

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