dissenting:
I respectfully dissent.
The main contention of the plaintiffs is that the trial court erred in its instruction to the jury as to the duty or standard of care owed them by the several defendants. In this regard the trial court instructed the jury that the duty was one of ordinary or reasonable care. The majority of this Court have now decided that this instruction is erroneous and that the defendants “should be held to the highest degree of care.” Such a determination in and of itself requires a reversal of the judgment and the majority opinion in my view might well end with that pronouncement. Such, however, is not the case. The majority of the Court in their professed desire to “arrive at truth and to render justice” are only briefly concerned with the basic question posed by this writ of error as to the nature of the duty owed plaintiffs by the defendants, and are primarily concerned with a conglomerate potpourri of “error” which, though clearly perceived by them, was nevertheless not even urged by litigants. I do not view Rule 111(f) Colo. R.C.P. as giving this Court the unbridled power to roam the record in search of “any error,” and upon finding such error to then reverse a judgment even though the plaintiff in error did not himself see fit to urge the matter. Rather Rule 111(f) grants us a discretionary *72power to notice such error, and in my view this power should be used sparingly. To reverse a judgment on a ground not urged by a plaintiff in error deprives the defendant in error of all opportunity to be heard on the matter. Suffice it to say I am still most reluctant to resolve issues which have not been raised nor briefed by the parties.
Proceeding then to a consideration of an issue which is raised and briefed by the parties and which received Only brief consideration by the majority of this Court, I would hold that the duty owed these plaintiffs by the defendants is that of reasonable care under all of the facts and circumstances of the case. Hence, I must dissent from the majority pronouncement that the duty was one of highest care.
In my view this is not a “carrier case,” but is one involving an amusement park device. In this regard the majority opinion states that it is “not important whether defendants were serving as a carrier or engaged in activities for amusement” and that the “important factors” are that the “plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and action; there was nothing they could do to cause or prevent the accident.” These so-called “important factors” do not justify or require that the defendants exercise the highest degree of care. At least I have found no authority for the proposition that the presence of these “important factors” imposes the duty of exercising a high degree of care, nor does the majority opinion cite any authority in support of this assertion.
In their brief the plaintiffs state that the case involves a “stage coach concession in a tourist attraction” and submit that the degree of care owed by the defendants to its patrons is that of a carrier for hire, i.e., “utmost skill, care and prudence.” In support of this contention, plaintiffs cite Denver & Rio Grande Railroad Co. v. Fotheringham, 17 Colo. App. 410, 68 Pac. 978, a case *73involving a common carrier. This reasoning that the degree of care owed by the operator of an old-time stage coach in an amusement park should be the same as that owed by a common carrier for hire is to me illogical and unrealistic. The plaintiffs in the instant case did not board this stage coach for transportation, as such, but took the ride for the purpose of obtaining pleasure and a possible thrill. My thinking in this regard is similar to that set forth in Brennan v. Ocean View Amusement Co., 194 N.E. 911, a case concerned with the degree of care owed by the owner and operator of a roller coaster. There, as here, it was argued that the duty was the same as that of a common carrier for hire. In rejecting that argument the Supreme Judicial Court of Massachusetts said:
“. . . The defendant was not a common carrier. It did not perform a public service in transporting passengers from one point to another. It merely furnished entertainment on its own premises. It would hardly be contended that the proprietor of a merry-go-round, for example, is a common carrier.”
Thus, in my considered judgment, the duty of these defendants is not that of a carrier for hire, but is that of an owner or operator of an amusement park device. There is admittedly a sharp division of judicial expression as to the standard of care owed by the owner and operator of an amusement park device to its patrons. Some states have decreed that the duty is one of highest care, but the general rule is that the owner and operator of an amusement park device has the less onerous duty of ordinary or reasonable care. See 86 A.L.R. 2, p. 350, and Am. Jur. 2, p. 212.
This matter has already been considered by this Court in Hook v. The Lakeside Park Company, 142 Colo. 277, 351 P.2d 261. Mr. Justice Frantz in his specially concurring opinion indicates that in his judgment the Hook case stands for the proposition that the owner of an amusement park owes his patrons the duty of exercising *74a high degree of care for their safety. I do not so read the Hook opinion. In my view this Court in that case stated that the duty owed by an owner or operator of an amusement park to his patrons is one of reasonable or ordinary care under all of the facts and circumstances of the case at hand, recognizing that where the particular activity is “extremely and intrinsically hazardous” reasonable care is a higher degree of care than would be required where the activity is not “extremely and intrinsically hazardous.” In any event, I simply cannot perceive that the pulling of a stage coach around the premises of an amusement park is “extremely and intrinsically hazardous.” Also, in the Hook case we declared that the “warranty of safe carriage, present in the carrier case, is absent where a plaintiff undertakes to ride on a device such as a Loop-O-Plane in an amusement park.” In short, I submit that the Hook case controls the instant case and that the instruction given by the trial court was in accord with the pronouncement in that case.
Finally, though the majority opinion gives rather full treatment to the plaintiffs’ theory of the case, not too much space is devoted to detailing the evidence adduced upon trial in behalf of the defendants. To supply this omission, I would note that the defendants’ evidence tended to refute the contention that the stage was being carelessly or negligently driven by its well-seasoned driver and also that there was evidence tending to establish that the coach overturned because a metal clip or ring on the right singletree broke because of a “bubble” inside the ring or clip which could not be detected by any visual inspection thereof. Such being the state of the record, I do not believe that it was error to instruct on unavoidable accident. In any event plaintiffs do not contend that it was error to thus instruct.