1. AUTOMOBILES — Passenger — Guest — Driver — Conduct — Jury Question. In an action for wrongful death of a passenger resulting from an automobile accident caused by driver falling asleep, the question of the driver's rights and duties requires submission to the jury of determination.
2. Guest — Driver — Drowsiness — Wilful Conduct — Question of Fact. Where a driver's admitted drowsiness was a premonitory symptom of impending a sleep which he intentionally disregarded, taking the needless chance of falling asleep while driving, resulting in an accident and the death of a passenger; whether such conduct constituted wilfulness and wantonness, was a question of fact for the jury.
3. Driver — Drowsiness — Accident — Wilful and Wanton Conduct. Where it appears that the driver of an automobile has been without sleep for a considerable time and has experienced symptoms of the approach of sleep, the fact that he continues to drive under such circumstances may manifest a wilful and wanton disregard for the safety of others within the meaning of the guest statute.
MR. JUSTICE HALL delivered the opinion of the Court.
THE parties appear here in the same order as they appeared in the trial court and we refer to them as plaintiffs and defendants or by name.
The plaintiffs are the father and mother of Connie Kay Hodges (herein referred to as Connie), age seventeen years, who died as the result of injuries received September 17, 1956, when a car in which she was riding as a guest, driven by the defendant Ladd, title to which was registered in the name of the defendant, Frances C Withrow, left U.S. Highway 287 at a point about fourteen miles northwest of Fort Collins, Colorado, and crashed into a dirt fill on a ditch bank.
The plaintiffs' complaint charges the following acts of negligence or conduct giving rise to liability by the named defendants:
Ladd — drove in a negligent manner consisting of a wilful and wanton disregard of the rights of others.
Gary Richard Withrow (herein referred to as Gary) — the sixteen-year-old son of the defendants, Frances G. Withrow and Ray T. Withrow, being in possession of the car involved with permission of his parents, "did negligently allow Clifford Gary Ladd" to drive the car.
Frances G. Withrow and Ray T. Withrow, being the owners of the car involved, "a family purpose" car, were "grossly negligent" in allowing Gary to control the operation of the car, they knowing that he was not competent to do so.
The defendants' answer admitted the accident and death of Connie, admitted that Ladd was driving, denied the other allegations of the complaint and set up as affirmative defenses that: (1) Connie was a guest and could not recover for injuries and plaintiffs cannot recover for her death; (2) that Connie was guilty of contributory negligence which precludes a recovery by plaintiffs, and (3) that Connie assumed the risks attendant upon the trip and no recovery can be had for her death.
Trial was to a jury and at the close of plaintiff's case a motion for a directed verdict for the defendants was sustained and judgment dismissing plaintiff's complaint was entered. Plaintiffs are here by writ of error seeking reversal.
The evidence is very brief and there are no conflicts or inconsistencies therein.
So far as necessary to our conclusion, only the following facts need be considered.
At about 9:00 p.m., Sunday, September 16, 1956, Connie, Ladd and Gary were in Elk Mountain, Wyoming and at that time went to a dance and there remained until the dance ended at about 2:00 a.m., Monday, September 17, 1956. From the dance the car involved was driven by one of the three to the home of Connie's sister in Elk Mountain where Connie had spent the previous night and where she was let off to pick up her clothes. The boys drove to Gary's brother's house in Elk Mountain, here Ladd and Gary picked up their clothes. The boys then (exact time not disclosed by the record) returned for Connie and she entered the car and the three of them started the trip from Elk Mountain to Fort Collins, Colorado, where all three resided.
Gary drove from Elk Mountain to Rock River (distance or time consumed not disclosed by the record). During this period Ladd slept. At Rock River Gary turned the driving over to Connie, who drove to Diamond Horseshoe, "just this side of Laramie." (Distance or time consumed not disclosed by the record). Both Ladd and Gary slept during this period.
Connie stopped the car at the Lucky Diamond, "a big restaurant just outside of Laramie, " there Connie and Ladd went into this restaurant and had coffee; Gary remained in the car asleep. After coffee(time consumed not disclosed by the record) Ladd took over the driving during which Connie and Gary both slept. Ladd drove at a speed of about fifty miles per hour on Highway No. 287, which has a posted speed limit of sixty miles per hour. He failed to negotiate a moderate curve and drove off the highway as above stated. He was sleep at the wheel at the time of the crash. Connie and Gary also were asleep.
The only evidence in the record as to Ladd's condition with reference to being sleepy and asleep is found in his statement made to Patrolman Robinson, who investigated the accident, and in Ladd's testimony given when called by plaintiff for cross-examination. This testimony is as follows:
PATROLMAN ROBINSON:
"A. I talked to the Ladd boy at the hospital; as I recall the conversation, I asked him what was the cause of the accident and he stated that he had went to sleep.
Q. All right. Did you question him as to whether or not his — what was his condition prior to the time he went to sleep? A. I questioned him on that and as I recall, I didn't make a note on that, but as I recall, he said that he was feeling drowsy before that, or sleepy, but he thought it was so close to home that he could make it on home."
DEFENDANT LADD:
"Q. Now when did you first become drowsy and sleepy prior to the accident? A. Oh, I would say about four or five miles the other side of the Forks Hotel. Q. All right. And you heard the Officer testify I presume didn't you? A. Yes. Q. When you became drowsy and sleepy why didn't you stop? A. Well, I didn't think I was that tired. Q. You thought like the Officer said you told him, is that correct, that you thought you could make it in to home? A. Yes sir."
There is nothing in the record to indicate how far it is from Laramie to the Forks Hotel (where Ladd first became drowsy), or from the Forks Hotel to the point of the accident. The accident occurred at about 6:30 A.M., September 17, 1956, about four and one half hours after the parties left the dance.
In sustaining the motion for a directed verdict, the trial judge held that the evidence presented did not show negligence or misconduct of a wilful or wanton character such as is required to overcome the inhibitions against recovery set up by the guest statute.
The trial judge, in sustaining the motion, stated:
"The statute requires negligence consisting of a wilful and wanton disregard of the rights of others, as a type of misconduct to permit the case to be taken out of the guest statute; the defendant has cited many cases to the effect that drowsiness and sleepiness is gross negligence a term that is not recognized in Colorado; Colorado cases stating that ordinary, simple or gross negligence, or the four forms of negligence recognized in some places, are not recognized in Colorado, but are recognized only as ordinary negligence, so that we must then determine whether or not the going to sleep is the wilful and wanton disregard of the rights of others, or if it is that type of act; the Defendant Ladd while on the witness stand testified that he first became drowsy about four or five miles the other side of the Forks Hotel and in response to the question `Why didn't you stop?' he answered `Well, I didn't think I was that tired." That is the act which we must determine whether or not is wilful and wanton. Reading from the case of Hollenback v. Fairbanks, in 132 Colo. page 216, at page 220, the statement is made and I quote — `The issue under the second claim comes squarely within and is determined by our recent decision in the case of Pettingell v. Moede, 129 Colo. 484, where we said that to wilfully and wantonly disregard the rights of others requires a consciousness of heedless and reckless conduct by which the safety of others is endangered. For the purpose of properly construing this statute, ordinary and simple negligence should be considered as resulting from a passive mind, while a wilful and wanton disregard expresses the thought that the acts of which complaint is made was the result of an active and purposeful intent. To be wilful and wanton there must be some affirmative act, purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly without regard to consequences or of the rights and safety of others, particularly the guest. Wilful act means voluntary, by choice, intentional, purposeful. Wantonness signifies a higher degree of culpability in that it is wholly disregardful of the rights, feelings and safety of others.'"
This language from the case of Hollenback v Fairbanks, quoted by the trial judge, is particularly applicable to the facts in the case at bar. However, we conclude that the quoted language, at least insofar as Ladd's right and duties are concerned, sanctions, rather than precludes, submission of the matter to the jury for its determination.
Also applicable is the following language from Clark v Hicks, 127 Colo. 25, 252 P.2d 1067:
"In the instant case, defendant knowingly was flirting with danger without necessity compelling him to take the chance. Here, on a dark night, while driving his car at a high rate of speed, he attempted to pass a slow moving truck on an upgrade, drove his car off on the wrong side of the road, ran off the road, came back upon it while traveling on two wheels tuned his car over and slid into the Webster car, all due to `taking a chance' and flirting with danger when there was no occasion to do so."
In construing our guest statute, the 10th Circuit Court of Appeals, in Von Lackum v. Allan, 219 F.2d 937, followed the holding of this court in Clark v. Hicks, supra and said:
"* * * What constitutes wilfullness and wantonness is a question of fact and, since each case must to a large extent stand on its own bottom, decided cases are of little aid in resolving this question. * * *."
Ladd, up to the time he fell asleep, was doing exactly what he intended to do. His conduct in driving was not the result of an untoward or unanticipated event; his conduct was wilful (defined by Webster as "self-determined," "voluntary," "international"). Ladd's admitted drowsiness was his premonitory symptom of impending sleep — a warning which he saw fit to intentionally and wilfully disregard, as evidenced by his statement that he thought "it was so close to home that he could make it on home." Ladd took, the needless chance of falling asleep while driving; he and all drivers are chargeable with knowledge that driving while asleep will probably lead to an accident.
The general rule is stated in 5A am. Jur. 572, § 540:
"* * * Generally speaking, if it appears that the driver of an automobile has been without sleep for a considerable period of time and has experience symptoms of the approach of sleep, the fact that he continues to drive under such circumstances has been held to manifest a wilful and wanton disregard for the safety of others within the meaning of the applicable guest statute. Failure to heed symptoms constitutes the test of wilful or wanton misconduct."
This court has not had occasion to determine whether continuing to drive after becoming drowsy constitutes such wilful, wanton and intentional conduct as to remove a case based on such facts from the inhibitions of the guest statute precluding recovery. However, the Supreme Court of Missouri, in Ausmus v. Swearingen, 296 S.W.2d 8, did have such problem before it. In that case the defendant had been driving continuously for about twenty-four hours before the accident which occurred near Palisades, Colorado. Defendant testified that he never felt sleepy and had no warning that he was going to sleep; however, he did fall asleep and drove off the road, just as did Ladd. The Supreme Court of Missouri interpreted the Colorado guest statute and affirmed a jury verdict which awarded damages to the guest. The court said:
"Guest statute cases involving a factual situation where the driver went to sleep fall into two categories, generally. In the first are a few cases in which the courts permit the guest to recover and make no mention of the necessity of the driver having had a warning or premonitory symptom of sleepiness. Two such cases are Curtis v. Curtis, 58 Idaho 76, 70 P.2d 369, and Manion v. Waybright, 59 Idaho 643, 86 P.2d 181. Each held that under the Idaho statute, which required, a showing of `gross negligence' or `reckless disregard,' the plaintiff made a submissible case. Other such cases are collected in 28 A.L.R.2d at page 53, Sec. 27.
"The other category, and the numerical majority, are those cases in which the courts permit the guest to recover but say that in order to do so there must be some evidence upon which a jury could find that the driver had a warning or premonitory symptoms of sleepiness. In those cases the ultimate question is — what evidence does it take to warrant a finding by the jury that the driver did have such a warning or premonitory symptoms? There is no clear line of demarcation between the instances in which it has been held that such evidence did exist and those in which it did not — the courts frequently remarking, and accurately so, that there is no rigid test to be applied to the factual situations, consequently the previous cases are of little value and that each case must be decided upon its own peculiar facts. Jones v. Pasco, 179 Va. 7, 18 S.E.2d 258, 138 A.L.R. 1385; 28 A.L.R. (2d) 12-104."
In Potz v. Williams, 113 Conn. 278, 155 Atl. 211 (1931), it is said:
"As a guest in the car the plaintiff could only recover if * * * the defendant was guilty of reckless conduct * * * This statute * * * requires proof by a guest * * * that the accident was `caused by his heedless and his reckless disregard of the rights of others, and in substance that it constituted wanton misconduct * * *.' * * * It is but the plainest common sense to recognize that there are circumstances under which the operation of an automobile upon the highway by one who is or should be aware of the likelihood that sleep will overtake him could reasonably be held to constitute reckless misconduct. * * *. Ordinarily the decision of the question must be one of fact for the jury and, if the conclusion they reach is reasonable in the light of the evidence and the inferences they may properly draw, it must stand."
In Carvalho v. Oliveria, 305 Mass. 304, 25 N.E.2d 764, the Supreme Court of Massachusetts stated:
"* * * Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, at least in maybe said that the danger of driving while heavy with drowsiness is so extreme and so self-evident that one who, with knowledge that he is in that condition, persists in driving without making the necessary effort fully to arouse himself can be found to be grossly negligent. * * *."
A very recent case, wherein the facts are very similar to the facts here, squarely holds that one who persists in driving while sleepy and aware of the danger of falling asleep is guilty of gross negligence as used in the guest statute. Newell v. Riggins, 197 Va. 490, 90 S.E.2d 150 (1955). There in the court said:
"It is true that the defendant said he didn't feel himself getting sleepy and that it came all at once, under questioning by his counsel. He also said at other times that he `dozed' as he proceeded on the highway. There is a recognized difference between dozing and sleeping. In common use and ordinary acceptation, `dozing' is a semi-conscious condition — a condition of being half-asleep — usually the first phase of sleep, a fully unconscious condition.
"Not making any colorable attempt to explain why he dozed or went to sleep, the defendant created an issue of fact regarding due care, and the question whether he exercised a smaller amount of watchfulness and circumspection than the circumstances required of a person of ordinary prudence and was guilty of an utter disregard of prudence was, in view of the principles stated and the evidence, one for the jury." (Emphasis supplied.)
The trial judge was in error in directing the jury of return a verdict in favor of the defendants.
The judgment is reversed and the cause remanded to the trial court for further proceedings consistent with the views herein expressed.
MR. JUSTICE DOYLE specially concurs.
MR. CHIEF JUSTICE SUTTON, MR. JUSTICE KNAUSS and MR. JUSTICE DAY dissent.
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