131 Neb. 816 | Neb. | 1936
The plaintiff alleges in her petition that, while accompanying the-defendant in his automobile, as an invited guest, he, without any warning, drove this automobile against a fire hydrant located upon the grounds and driveway immediately adjacent to the Omaha Municipal Airport, causing the automobile to be violently stopped, and thereby throwing plaintiff in and about said automobile and against the-windshield thereof, causing injuries specifically described in her pleading. Gross negligence of the defendant is charged in five particulars, viz.: Driving his automobile against a fire hydrant; excessive speed; failing to stop - or slacken his speed or. change the course of his car before striking the fire hydrant; failing to keep a proper lookout; failing to keep his automobile under proper control.' In-his answer the defendant admitted “that on April 5, 1934, plaintiff was riding with him in his Ford coupé as his guest;” and. denied all other allegations of plaintiff’s petition. -In a trial to a jury, at the.close of plaintiff’s.evidence, the- court -sustained defendant’s motion to -dismiss plaintiff’s petition and action for want of sufficient evidence to support a verdict. From the judgment of the trial court overruling- -her motion for a new trial, the' plaintiff appeals.
The record now before us invokes the application of.the language employed by- this court in Rogers v. Brown, 129 Neb. 9, 260 N. W. 794, viz.“The question presented by the appeal is the sufficiency of' the evidence to make a prima facie case in favor, of plaintiff for the consideration of the. jury,.-notwithstanding the statute providing.that an unintoxicated, owner-or. operator -of a -motor .vehicle shall not-be liable in damages to • a gratuitous guest except - for gross negligence. Gomp. St.- Supp. 1933, -sec. 39-1129. The term ‘gross negligence’, as thus used has been-defined to «.mean
In the case at bar, the scene of the accident was what was referred to as the “plaza,” situated adjacent to the administrative building of the Omaha Municipal Airport. In the light of the record before us, we define the term “plaza” as “a public square in a city or town.” Webster’s New International Dictionary (2d ed.) Unabridged. The photographs in the instant case disclose a plaza which, with the highways connected therewith, was prepared for use of the public. Situated within the boundaries, and at considerable distance from the confines thereof, was an ordinary “fire hydrant.” On the night of the accident, it was in no manner marked or protected. As the plaintiff and defendant were proceeding to the Municipal Airport of Omaha, and were passing along the highway, they entered what we denominate the “plaza.” Therein the defendant, who was at the wheel, when directly west of the Boeing hangar' at' the airport, turned the car sharply to the right toward a place near this hangar devoted to the parking of cars.. He
On cross-examination the plaintiff testified as follows: “Q. And he (defendant) was driving around 20 miles an hour? A. I think so. Q. And then you made the turn which you think was for the purpose of going into the parking space? A. Yes, sir. Q. And, of course, almost instantly after making the turn, the crash occurred? A. Yes, sir. Q. Prior to that time you had been looking ahead ? A. Part of the time; yes. Q. And as you went up there? A. Yes, sir. Q. And you could see whatever lights, whatever part of the road your light illuminated, you could see that? A. Yes, sir. Q. But you did not see the fire plug? A. I did not; no. Q. As far as you know now, then, you saw the fire plug? That is right, isn’t it? A. I did not see it. Q. You did not know what had happened until after the accident happened; then he told you he had hit the fire plug? A. Yes, sir. Q. And did you see it at that time?
In consideration of the evidence in its entirety, we find therein no substantial conflict. It is to be remembered that, in passing on the question of gross negligence, it is the province of this court to take a series of facts and circumstances, conceded or proved, and to declare what are the rights of the parties arising out of them. Thurston v. Carrigan, 127 Neb. 625, 256 N. W. 39; Belik v. Warsocki, 126 Neb. 560, 253 N. W. 689. Applying this principle to the facts disclosed by the present record, we are unanimously of the opinion that gross negligence was not proved, and the action of the trial court in directing a verdict for defendant was, in all respects, correct.
The judgment is, therefore,
Affirmed.