105 Neb. 381 | Neb. | 1920
Plaintiff, as administratrix of the estate of her deceased husband, Charles J. Bauer, recovered a judgment for $5,000 in the district court for Clay county against defendant, who appeals.
October 8, 1916, defendant, and his family, being about to take a pleasure ride in defendant’s automobile, invited plaintiff and her husband to accompany them. While they were driving along a main highway, a man named Mitchell drove by them, or attempted to do so. It is claimed by plaintiff that, at the suggestion of defendant’s wife, defendant increased the speed of the car and drove it in a reckless and dangerous manner; on behalf of defendant it is claimed that the speed of the car was increased to comply with the expressed wish of the guests. In any event the evidence is clear that the speed of the car was accelerated. Defendant drove his car too far to the left side of the beaten tread of the road, thereby, striking a small ditch extending from the end of a culvert. It is not made entirely clear whether this directly resulted in the collapse of one of the front wheels of the car or whether it merely caused the driver to momentarily lose control of his car. The car was upset, and plaintiff’s intestate and one of defendant’s children sustained injuries from which they died. It is stated in the brief of appellant in enumerating the controverted facts that proof was made of the life expectancy of deceased, but no proof was made of plaintiff’s life expectancy, or the life expectancy of deceased’s father or mother, for whose benefit the suit is also brought.
No evidence was offered to show that deceased had ever contributed anything to the support of either his father or mother, or that lie might ever be called upon to do so. But the record shows affirmatively that he had used his entire income for the support of himself and wife. He had for
The real point pressed for our consideration has to do with the rule under which liability may attach where me invites another to ride in his automobile, as a guest, and the guest is injured. Appellant contends that under such circumstances the oAvner of the' car is not liable unless it is shoAvn that he is guilty of gross negligence.
The court instructed the jury: “When defendant invited Charles J. Bauer and his wife to ride in the automobile operated by him and undertook to provide a conveyance for plaintiff and her husband, although defendant did so gratuitously, he was bound to exercise due and reasonable care in the operation of said car for the safety of his guests, and not by any act of his to increase the danger or create a new or unnecessary danger.
“If, therefore, you find from the evidence, taking into consideration the condition of the road, the experience, knowledge and skill of defendant in driving the car, the speed at which he was going, and all the conditions and circumstances shown by the evidence that defendant Griess was negligent and careless in the operation of the car, or you
The court also instructed the jury “that by the term ‘due and ordinary care,’ as used in these instructions, is meant such a degree of care as a prudent and reasonable man, guided by those considei ations which - ordinarily regulate the conduct of human affairs, would exercise under the existing circumstances and conditions.
“By the term ‘negligence,’ as-used herein, is meant the failure to exercise such care, prudence and forethought as under the circumstances duty requires should be given or exercised.”
Defendant complains of these instructions, claiming that the jury ought to have been told that before recovery could be had they must find that defendant was guilty of gross negligence. The contention of defendant appears to be not without support: Massaletti v. Fitzroy, 228 Mass. 487; Flynn v. Lewis, 231 Mass. 550. In the latter case, however, it is pointed out that under a new statute of Massachusetts a recovery may be had on proof of only ordinary negligence. However, the rule is different in other jurisdictions. In Beard v. Klusmeier, 158 Ky. 153, in a case very similar to the one at bar, the court said: “The principal'question for decision is this: What duty does the owner, who drives his automobile, owe to his guest who accepts an invitation to ride with him? Appellant likens the case to that of one who is invited upon the premises of another, and insists that an invited guest must take the premises of the host as he finds them, and cannot complain of the conduct of his host in regard to keeping the premises in repair, or in the management of his personal property for the pleasure and enjoyment of the guest, unless guilty of gross negligence.” This, in substance, is the claim made by appellant in the instant case. The claim of appellee here may be likened to the claim of appellee in that case,
It may be conceded that the host is not the insurer of the safety of his guest, but in sound reason and good morals it cannot be disputed that the driver of an automobile who invites his friend to ride, the invitation being accepted, is bound to exercise reasonable and ordinary care in the operation of his car, and is not free to expose his guest to unnecessary danger.
Every controverted question of fact was submitted to the jury and by the jury resolved against the defendant, finding no error in the instructions, the judgment is
Affirmed.