277 N.W. 429 | Neb. | 1938
This action was begun by the plaintiff, Mary Alice Gosnell, a minor, by a next friend, to recover damages arising from personal injuries received by the plaintiff when an automobile in which she was riding overturned. Lela B. Montgomery, a defendant, was the driver of the automobile. John W. Machamer, the only other defendant,
The only question presented by' the defendants in oral argument to this court, and the only one we deem necessary of determination, is that of whether or not the evidence is sufficient to support a finding of the jury to the effect that the defendant Montgomery was guilty of gross negligence proximately causing plaintiff’s injuries. Chapter 105, Laws 1931, now section 39-1129, Comp. St. Supp. 1937, provides in part as follows:
“The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver of said motor vehicle being under the influence of intoxicating liquor or .because of the gross negligence of the owner or operator in the operation of such motor vehicle.”
That the defendant Montgomery was not in any manner intoxicated and that the plaintiff was not riding for hire are both conceded. To determine whether or not the defendant Montgomery can be said as a matter of law not to be shown to have been guilty of gross negligence, within the meaning of the above quoted statute, necessitates a careful analysis of the facts shown by the evidence.
On May 3, 1934, the defendant Montgomery, her daughter Martha, and one Lois Coolidge drove a Chandler automobile from Central City, Nebraska, to Lincoln, Nebraska. In doing so, they drove across a point on the highway where such highway intersects a railroad. This point is upon state highway No. 66, and is located about 23 miles east of Central City, Nebraska. Nothing in the evidence shows that anything occurred in crossing this railroad crossing on the ride to Lincoln that called the attention of defendant Montgomery to any roughness in the highway at such crossing. It is not shown that defendant Montgomery ever drove or rode over this crossing prior to this
The appellee insists that the facts of this case do not bring it within that class of cases in which the defendant is suddenly faced with an emergency, and that, even if it were such a case, the defendant Montgomery is not aided by such rule when her own wrong or failure to use due care brought her to such an emergency. To support such contention the plaintiff cites the following authorities: Sterns v. Hellerich, 130 Neb. 251, 264 N. W. 677; 1 Blashfield, Cyclopedia of Automobile Law and Practice, sec. 669. We concede the correctness of the rule of law to which reference is made by this contention, but find it not determinative of the question here involved. In this case defendant Montgomery may have been guilty of some negligence in her approach to the crossing, even though she had crossed it two days before without noticing any condition making speed across it dangerous. She may have made an improper choice of courses to pursue, or even have been guilty of negligence in the application of the brakes, when warned by Martha of the crossing being “bad.” The question involved is that of whether or- not all of her acts that proximately caused the injury to plaintiff constituted gross negligence. If guilty of negligence less than gross in approaching and in arriving at the crossing, and if also the application of the brakes under all circumstances shown constituted gross negligence, which we deny, then we concede that she could not escape lia
This case was twice tried in the trial court. From the nature of the facts involved it plainly appears that no reliable, competent and material evidence other than that already produced can be produced upon another trial. The judgment of the trial court is therefore reversed and this cause remanded, with instructions that it be dismissed with prejudice to a future action, and that costs be taxed to the plaintiff.
Reversed, with directions to dismiss.