. HUXMAN, Circuit Judge.
, This action was brought by George R. Allan, Jr., against William H. Von Lackum, Jr., for damages resulting from an automobile accident. The action was brought under the Colorado Guest Statute.1
2A substantial verdict upon which judgment was rendered was returned for appellee.
' By this appeal appellant presents two. questions. They are (1) there was not sufficient evidence to show wanton and willful conduct on appellant’s part to submit the ease to the jury and the court, therefore, erred in overruling appellant’s motion for a directed verdict, and (2) the court erred in its instructions to the jury.
Under the Colorado Guest Statute there can be no recovery unless the negligence relied upon consists of “wilful and wanton” disregard of the rights of others.- , What-constitutes willfulness -and wantonness- is a question of fact and, since each ease must- to a large extent stand on its own bottom, decided cases are of little aid in resolving this question-. Colorado - in a number of cases has held that excessive speed alone is not sufficient to constitute willfulness and wantonness, even though the guest has warned the driver of his dangerous speed* In other cases it has held that excessive speed coupled with other factors was sufficient to constitute willfulness and wantonhess.3
Allan, Tor Wéstgaard and appellant, Von Lackum, were architectural students at the University of Denver, Colorado. On July 3, 1951, they decided to go to Central City where an opera was being staged. They planned to arrive there about the time the opera was over. They decided to spend some time at Idaho Springs. Westgaard and Allan traveled in Allan’s car and Von Lackum followed them in a 1941 Convertible Buick. On the way to Idaho Springs, Allan encountered difficulties which caused him to abandon his car along the roadside. When Von Lackum came along, all three got into his car and proceeded to Idaho Springs, where they remained until about 11:00 p. m. They all three were riding in the front seat of the convertible with- the top down. They left Idaho Springs on Highways 40 and 6. When they came to Highway 119, they took it to Central City. The posted speed on Highway 119 from its junction with Highways 6 and 40 to Central City was 40 miles per hour. Von Lackum testified that he traveled 45 miles per hour until he came to Highway 119 and from there on at 40 miles per hour. This testimony, however, is in conflict with all the remaining testimony as well as the physical facts. West-gaard testified that Von Lackum was driving in excess of 60 miles per hour. Allan at one time asked-- him to slow down since there was a sharp curve ahead but Von Lackum disregarded this [939]*939warning. Westgaard also told Von Lackum to take it easy, with the same result.
A highway patrolman was parked at the junction of Highways 6, 40 and 119. He saw the Von Lackum car go by at such a high excessive rate of speed as to immediately challenge his attention and cause him to take out in pursuit of this car and another which preceded it. He estimated the speed of the Von Lack-um car at 60 miles per hour. The point where the accident occurred was just beyond a long tunnel about 4 miles from the intersection of the highways. Traveling at a speed of from 50 to 70 miles per hour where traffic conditions permitted, the patrolman was unable to overtake the Von Lackum car before it passed through the tunnel. Just as the patrolman was going through the tunnel, he saw the lights of the car flip and the car crash into the mountain side along the highway. The patrolman testified that he was going “pretty fast” at the time and had to set the brakes hard to get stopped.
There were no tire skid marks on the highway showing that Von Lackum had attempted to put on the brakes. This was a curving winding mountain road. The patrolman testified that the longest open space on the road without a curve was a quarter of a mile in length. That Von Lackum was traveling at a fast and dangerous rate of speed is evidenced by the fact that Von Lackum left the road, went through a ditch and crashed into the mountain without apparently any attempt to slow down. The speed of the car is also attested to by the fact that Westgaard was hurled 30 feet from the point of impact and Allan was hurled 71 feet from the point of impact.
When we take into consideration the fact that Von Lackum was well acquainted with this winding curving mountain road, having driven it on a number of occasions, that he was driving at an excessive and dangerous rate of speed according to the testimony of everyone save himself, that he had been warned to slow down but had refused to do so, we cannot say as a matter of law that the facts did not present a case for the jury’s consideration.
A more serious question arises with respect to the court’s instructions and especially with regard to Instruction No. 5. In this instruction the court instructed the jury that the term “ ‘negligence’ is defined as the failure to observe, for the protection of others, that degree of care, caution and vigilance which the circumstances justly demand; in other words, it is the want of that care and prudence which an- ordinarily careful and prudent person would exercise under all of the circumstances, of the case. * * * ” This is a, good instruction on simple negligence but it has no place in this case because under the Colorado Guest Statute no recovery can be predicated upon simple negligence. Recovery can be had only if there is present willful and wanton conduct.
The Supreme Court of Colorado in a number of decisions has frowned upon the giving of such an instruction by trial courts but it apparently has refused to hold that the giving of such an instruction ipso facto constitutes reversible error. The Supreme Court has recently and on the same day decided two cases in which it reversed the judgment because of the giving of an instruction on simple negligence. See Pettingell v. Moede, Colo., 271 P.2d 1038, and Lewis v. Oliver, Colo., 271 P.2d 1055. In the Pettingell case the court said that if the giving of such an instruction in context with the giving of other instructions results in confusion, it will constitute reversible error. And the court pointed out that if trial courts persisted in giving such an instruction “extreme care and caution” is necessary to prevent such confusion. The Lewis case is not of much help. It does not repudiate the doctrine of the Pettingell case. The court merely states that while an adequate instruction on wantonness and willfulness was given, the giving of an instruction on simple [940]*940negligence “under the present circumstances was reversible error.” [271 P.2d 1058.] What those circumstances , were is not set out in the opinion.
In Instruction No. 2 the court told the jury that under the Colorado Guest Statute a guest had no cause of action against the operator of a vehicle “ ‘unless such accident shall have been intentional on the part of such owner or operator caused * * *, or by negli-. g.ence consisting of a wilful and wanton disregard'of the rights of others.’” In Instruction No. 3 the court correctly and adequately defined willfulness and wan-, tonness. In Instruction No. 4 the court, toíd the jury that “the mere happening. of an accident does not. raise any presumption .that .it ,;was caused by the wilful and wanton conduct of the De-. ■fendant.” And in Instruction No. 10 • i ’ • «.
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. HUXMAN, Circuit Judge.
, This action was brought by George R. Allan, Jr., against William H. Von Lackum, Jr., for damages resulting from an automobile accident. The action was brought under the Colorado Guest Statute.1
2A substantial verdict upon which judgment was rendered was returned for appellee.
' By this appeal appellant presents two. questions. They are (1) there was not sufficient evidence to show wanton and willful conduct on appellant’s part to submit the ease to the jury and the court, therefore, erred in overruling appellant’s motion for a directed verdict, and (2) the court erred in its instructions to the jury.
Under the Colorado Guest Statute there can be no recovery unless the negligence relied upon consists of “wilful and wanton” disregard of the rights of others.- , What-constitutes willfulness -and wantonness- is a question of fact and, since each ease must- to a large extent stand on its own bottom, decided cases are of little aid in resolving this question-. Colorado - in a number of cases has held that excessive speed alone is not sufficient to constitute willfulness and wantonness, even though the guest has warned the driver of his dangerous speed* In other cases it has held that excessive speed coupled with other factors was sufficient to constitute willfulness and wantonhess.3
Allan, Tor Wéstgaard and appellant, Von Lackum, were architectural students at the University of Denver, Colorado. On July 3, 1951, they decided to go to Central City where an opera was being staged. They planned to arrive there about the time the opera was over. They decided to spend some time at Idaho Springs. Westgaard and Allan traveled in Allan’s car and Von Lackum followed them in a 1941 Convertible Buick. On the way to Idaho Springs, Allan encountered difficulties which caused him to abandon his car along the roadside. When Von Lackum came along, all three got into his car and proceeded to Idaho Springs, where they remained until about 11:00 p. m. They all three were riding in the front seat of the convertible with- the top down. They left Idaho Springs on Highways 40 and 6. When they came to Highway 119, they took it to Central City. The posted speed on Highway 119 from its junction with Highways 6 and 40 to Central City was 40 miles per hour. Von Lackum testified that he traveled 45 miles per hour until he came to Highway 119 and from there on at 40 miles per hour. This testimony, however, is in conflict with all the remaining testimony as well as the physical facts. West-gaard testified that Von Lackum was driving in excess of 60 miles per hour. Allan at one time asked-- him to slow down since there was a sharp curve ahead but Von Lackum disregarded this [939]*939warning. Westgaard also told Von Lackum to take it easy, with the same result.
A highway patrolman was parked at the junction of Highways 6, 40 and 119. He saw the Von Lackum car go by at such a high excessive rate of speed as to immediately challenge his attention and cause him to take out in pursuit of this car and another which preceded it. He estimated the speed of the Von Lack-um car at 60 miles per hour. The point where the accident occurred was just beyond a long tunnel about 4 miles from the intersection of the highways. Traveling at a speed of from 50 to 70 miles per hour where traffic conditions permitted, the patrolman was unable to overtake the Von Lackum car before it passed through the tunnel. Just as the patrolman was going through the tunnel, he saw the lights of the car flip and the car crash into the mountain side along the highway. The patrolman testified that he was going “pretty fast” at the time and had to set the brakes hard to get stopped.
There were no tire skid marks on the highway showing that Von Lackum had attempted to put on the brakes. This was a curving winding mountain road. The patrolman testified that the longest open space on the road without a curve was a quarter of a mile in length. That Von Lackum was traveling at a fast and dangerous rate of speed is evidenced by the fact that Von Lackum left the road, went through a ditch and crashed into the mountain without apparently any attempt to slow down. The speed of the car is also attested to by the fact that Westgaard was hurled 30 feet from the point of impact and Allan was hurled 71 feet from the point of impact.
When we take into consideration the fact that Von Lackum was well acquainted with this winding curving mountain road, having driven it on a number of occasions, that he was driving at an excessive and dangerous rate of speed according to the testimony of everyone save himself, that he had been warned to slow down but had refused to do so, we cannot say as a matter of law that the facts did not present a case for the jury’s consideration.
A more serious question arises with respect to the court’s instructions and especially with regard to Instruction No. 5. In this instruction the court instructed the jury that the term “ ‘negligence’ is defined as the failure to observe, for the protection of others, that degree of care, caution and vigilance which the circumstances justly demand; in other words, it is the want of that care and prudence which an- ordinarily careful and prudent person would exercise under all of the circumstances, of the case. * * * ” This is a, good instruction on simple negligence but it has no place in this case because under the Colorado Guest Statute no recovery can be predicated upon simple negligence. Recovery can be had only if there is present willful and wanton conduct.
The Supreme Court of Colorado in a number of decisions has frowned upon the giving of such an instruction by trial courts but it apparently has refused to hold that the giving of such an instruction ipso facto constitutes reversible error. The Supreme Court has recently and on the same day decided two cases in which it reversed the judgment because of the giving of an instruction on simple negligence. See Pettingell v. Moede, Colo., 271 P.2d 1038, and Lewis v. Oliver, Colo., 271 P.2d 1055. In the Pettingell case the court said that if the giving of such an instruction in context with the giving of other instructions results in confusion, it will constitute reversible error. And the court pointed out that if trial courts persisted in giving such an instruction “extreme care and caution” is necessary to prevent such confusion. The Lewis case is not of much help. It does not repudiate the doctrine of the Pettingell case. The court merely states that while an adequate instruction on wantonness and willfulness was given, the giving of an instruction on simple [940]*940negligence “under the present circumstances was reversible error.” [271 P.2d 1058.] What those circumstances , were is not set out in the opinion.
In Instruction No. 2 the court told the jury that under the Colorado Guest Statute a guest had no cause of action against the operator of a vehicle “ ‘unless such accident shall have been intentional on the part of such owner or operator caused * * *, or by negli-. g.ence consisting of a wilful and wanton disregard'of the rights of others.’” In Instruction No. 3 the court correctly and adequately defined willfulness and wan-, tonness. In Instruction No. 4 the court, toíd the jury that “the mere happening. of an accident does not. raise any presumption .that .it ,;was caused by the wilful and wanton conduct of the De-. ■fendant.” And in Instruction No. 10 • i ’ • «. the court told the jury that if it found that the defendant was negligent, “it-will then be your du.ty to determine* whether or not the defendant’s acts in, so driving were either willful'or wan-, ton as those terms are used -in’the guest statute and as defined herein.” And in a further paragraph of the instruction • the court told the jury that it must deter*mine whether the defendant was guilty' of negligence which constituted willful' and wanton disregard of the rights of the plaintiff.
Throughout these instructions.the court stressed that mere negligence-was not - sufficient to impose liability. .- In clear terma it told the jury that if it. found that the defendant was negligent - it must further find that such negligence-was wanton and willful .before. the defendant could be held liable. We feel that the court’s instruction's with regard to willfulness and wantonness meet, the test of the Pettingell case and that the •giving of the instruction on ordinary negligence did not constitute reversible error.
Appellant assigns error on the.use of the terms willfulness, or wanton-„ ness in the disjunctive in-the first paragraph of-Instruction No. 10 and urges that both must be found to impose liability. In a subsequent paragraph of Instruction No. 10 the court does use the terms in the conjunctive as it does in other parts of the instructions. We do not think the jury was misled by this. Furthermore, appellant did not except to either Instruction No. 5 or 10 and in light of all the instructions we feel he should not be permitted to raise these questions for the first time on appeal.
Affirmed.