holding that operators of a stage coach ride were subject to 24 the same standard of care as a common carrier, because “the plaintiffs had surrendered themselves 1 to the care and custody of the defendants; they had given up their freedom of movement and 2 actions; there was nothing they could do to cause or prevent the accident. Under the circumstances 3 of this case, the defendants had exclusive possession and control of the facilities used in the 4 conduct of their business and they should be held to the highest degree of care.”
How later courts described this case
- holding that operators of a stage coach ride were subject to 24 the same standard of care as a common carrier, because “the plaintiffs had surrendered themselves 1 to the care and custody of the defendants; they had given up their freedom of movement and 2 actions; there was nothing they could do to cause or prevent the accident. Under the circumstances 3 of this case, the defendants had exclusive possession and control of the facilities used in the 4 conduct of their business and they should be held to the highest degree of care.”
- reversing judgments where names and descriptions of the parties in the verdicts did not conform to the pleadings
- abolishing the unavoidable accident instruction
- operator of amusement park's stage-coach ride held to highest duty of care
Written by the judges who cited it.
The opinion
Mr. Justice Moore
concurs in the result.
I concur in the result reached by the majority. However, I cannot agree with the majority opinion in so far as it assigns as ground for reversal of the judgment the giving of an instruction to the effect that the degree of care owed by defendants was that of ordinary care. It is my opinion that the majority opinion in this connection is out of harmony with Hook v. Lakeside Park, 142 Colo. 277 , 351 P.2d 261 . I agree with the dissent of Mr. Chief Justice McWilliams on this point, but other errors warrant reversal of the judgment.
Although I was one of those who dissented from the views of the majority in that case, I feel that the majority opinion in the Hook case, supra, should be controlling here. Subject to certain exceptions, none of which are here present, when a question has been thoroughly considered and determined by a majority of the court (and the Hook case was certainly treated in that manner) it should be adhered to in subsequent cases in which there *68 are no pertinent distinguishing facts clearly warranting the application of a different rule of law. As one who dissented in the Hook case I nevertheless believe that stare decisis is applicable and that the dissenters in that case should yield to the majority view to the end that there may be less uncertainty in the application of legal principles to comparable factual situations.
I see no substantial factual distinction between the Hook case and the instant case which warrants application of a different rule upon the subject of degree of care. I cannot join the majority in that portion of the opinion wherein it is said, with reference to the doctrine of “unavoidable accident” that we now go on record holding that a plea of unavoidable accident may not be set up as a separate or independent defense unrelated to charges of negligence and contributory negligence, and that to now instruct on unavoidable accident is error.
On March 14, 1955, this court reversed a judgment for the reason that the trial court refused to give a tendered instruction on the question of “unavoidable accident.” Union Pacific Railroad Company v. Shupe, 131 Colo. 271 , 280 P.2d 1115 . In Stephens v. Lung, 133 Colo. 560 , 298 P.2d 960 , one of the questions for determination was:
“Did the trial court err in submitting to the jury an instruction upon the subject of ‘unavoidable accident’?”
The question was answered in the negative. Five decisions of this court were cited in that opinion, all of which were handed down between March 20, 1950, and March 14, 1955. Each of those opinions recognized and upheld the doctrine of “unavoidable accident.” Numerous other authorities could have been cited.
Under these circumstances I cannot bring myself to throw away the doctrine, thus firmly settled in the law, because it does not happen to be consistent with my own philosophical notions of what the law should be.
Our function as judges is to apply well established law as we find it. I am one of those who believe that *69 there is far too much “judicial legislation,” which is another way of saying that judges should not usurp the legislative function.