dissenting.
I dissent from the majority opinion herein in all respects, with the exception of the direction that the case be remanded for submission to a jury, but not submitted on the question as directed therein.
While it is alleged that plaintiff was an invited guest of defendant, the complaint does not strictly conform to the requirements of the guest statute, being section 371, chapter 16, ’35 C.S.A., in that there is no claim of a “wilful and wanton disregard of the rights of others.” The complaint alleges, “That said negligent acts proximately caused said accident and plaintiff’s injuries and damages as hereinafter set out, and that said negligence consisted of a reckless and willful disregard of the rights of others, including this plaintiff.” This allegation more nearly conforms to the exemplary damage statute, being section 6, chapter 50, ’35 C.S.A. The latter statute in so far as it is in conflict with the so-called guest statute, is repealed. The clear intention of our legislature in 1931 in enacting the guest statute was to limit the liability of the owner or operator of a motor vehicle. The basis of liability is unequivocally limited to an intentional accident, intoxication, and willful and wanton disregard of the rights of others. Negligence cannot be constructed from either of these three bases. Since there are no recognized degrees of negligence in Colorado, the statute specifically means something more than negligence. Therefore, the word “negligence” as found in the guest statute is a meaningless expression and should not be allowed to shadow the true sense of the statute.
Our statute seems to be more rigid in its terms than the so-called guest statute of most other states. It is article 5, chapter 16, section 371, ’35 C.S.A., and is as follows: “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, *527death or loss in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a wilful and wanton disregard of the rights of others. The provisions of this section shall not relieve a public carrier or any owner or operator of a motor vehicle while the same is being demonstrated to a prospective purchaser, of responsibility for any injuries sustained by a passenger being transported by such public carrier or by such owner or operator.”
It cannot successfully be contended, as expressed by the clear words and meaning of the above statute, that the legislature intended to first relieve the owner or operator of liability from negligence in any of its usually recognized degrees and then by the same statute, make him liable for any degree of negligence. As has been aptly said, the legislature was not engaging in the process of “marching uphill and then marching down again.”
This court has never directly passed upon the question of whether or not contributory negligence is available as a defense under this statute. It seems unanswerable that if there can be no negligence under this statute, then there is no negligence toward which a claimant by his acts could contribute. “The defense of contributory negligence is not available where injury is inflicted under conditions open to the charge of wilfulness or wantonness.” Bordonaro v. Senk, 109 Conn. 428, 147 Atl. 136, and cases there cited.
The only question to be resolved under this guest statute is whether the acts of defendant were willful and wanton. If there was no conflict in that evidence, then it is for the court to determine; however, if the facts are in dispute, they are to be submitted to the jury under definite instructions as to what constitutes willful and wanton disregard of plaintiff’s rights.
It is to be noted that here we have no claim of “willful” disregard of plaintiff’s rights and the matter of intoxication is not involved, and, as I have said before, *528negligence is not involved. If the acts are negligent, they are not willful or wanton, and if willful and wanton, it is not negligence. Since willfullness and wantonness is more than negligence, it logically follows that contributory negligence is not an element to be considered or dealt with either by pleading, proof or instructions of the court under this statute. Anything that suggests the act to be willful or wanton goes beyond negligence. Here the defendant’s acts are to be measured by that yardstick alone.
In this case there is no place for the jury to be permitted to determine whether or not, either the plaintiff or defendant did what an ordinarily prudent person would have done under the circumstances, or failed to do what a person of ordinary prudence would have done under the circumstances, but to recover, plaintiff must allege and prove more than that, namely, wanton and willful disregard of plaintiff’s rights.
It is my opinion that the judgment should be reversed and the cause remanded with directions to submit the case to the jury under proper instructions upon one question only, that is, were the acts of defendant that are complained of by plaintiff, willful and wanton acts in disregard of her rights?