The opinion
Mr. Justice Bakke,
dissenting.
The Court reverses the judgment because the trial court refused to give an instruction on assumption of risk, and assumes that plaintiffs voluntary assumption of risk was a form of contributory negligence.
Conceding the correctness of the assumption (Wilson v. Hill, 103 Colo. 409 , 86 P. [2d] 1084 ), I still think the judgment should be affirmed for the following reasons: 1. Plaintiffs alleged assumption of risk was not spe *529 cifically pleaded as required by rule 8 C (c) R.C.P. Colo. 2. The question of the trial court’s refusal to give an instruction on assumption of risk or contributory negligence was not raised in the motion for a new trial. It is unnecessary to cite authorities on this well-settled proposition. 3. The defense of contributory negligence is not available to one who is guilty of wanton and willful misconduct. 45 C.J. 981, §533, citing Montgomery v. Colorado Springs Co., 50 Colo. 210 , 114 Pac. 659 . See, also, Mr. Justice Hilliard’s dissenting opinion in Healy v. Hewitt, 101 Colo. 92 , 71 P. (2d) 63 .
The Court’s opinion may result in a rule whereby the driver of an automobile, who is accustomed to the use of intoxicating liquor, may, by the simple expedient of taking a drink or two in the presence, or with the knowledge, of a prospective guest, escape liability for subsequently occurring accidental injuries to the latter and which are occasioned by the driver’s negligence and a willful and wanton disregard of the rights of his guest.