Blain v. Yockey , 117 Colo. 29 ( 1947 )

On Petition for Rehearing. Counsel for plaintiff in error in their petition for rehearing urge us to overrule our decision in Healy v.Hewitt, 101 Colo. 92, 71 P.2d 63, and adopt the dissenting opinion therein as the law in this jurisdiction. It also is urged that our opinion in Jaeckel v. Funk,111 Colo. 179, 138 P.2d 939, is contrary to our present decision. In the instant case there is no allegation that the negligence of which complaint is made consisted of a wilful and wanton disregard of the rights of plaintiff, while in Healy v. Hewitt, supra, it was so alleged, and the jury found wilful and wanton negligence. In Jaeckelv. Funk, supra, the court expressly instructed the jury that unless it found from the evidence that the negligence consisted of a wilful and wanton disregard of the rights of plaintiff, no verdict in the latter's favor could be returned. Assuming, but not deciding, that the dissenting opinion in Healy v. Hewitt, supra, is a correct statement of law and should now be so announced in this jurisdiction, we would not be warranted in so holding under the factual situation presented.

The petition for rehearing is denied.