126 Neb. 554 | Neb. | 1934
This is an action brought by plaintiff to recover damages for injuries claimed to have resulted from an automobile accident. The trial resulted in a verdict for plaintiff, and from the action of the trial court rendering judgment thereon the defendant prosecutes an appeal to this court.
One of the questions urged for reversal is that the evidence is insufficient to support the verdict. To dispose of the contention we must determine whether there is sufficient evidence of gross negligence to justify the submission thereof to the jury.
It appears that the plaintiff was a guest riding in the automobile owned by defendant, but which, at the time, was operated by her brother. The driver of the car was a youth 16 years of age. The evidence discloses almost
If the plaintiff is entitled to recover at all, it must be on evidence required by section 39-1129, Comp. St. Supp. 1931, which provides, so far as material to our consideration, that “the operator of a motor vehicle shall not be liable for any damage to any * * * person riding in said motor vehicle as a guest * * * and not for hire, unless such damage is caused by * * * the gross negligence of the * * * operator.” It therefore becomes necessary to determine what is meant by the term “gross negligence” as it appears in this statute. In construing the guest law this court recently held:
“We are of the opinion that in adopting the guest act the legislature used the term ‘gross negligence’ as indicating a degree of negligence. Negligence may be slight, ordinary, or gross. Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It may be said that it indicates the absence of even slight care in the performance of a duty, and such, we think, is the meaning intended by the legislature.
“What amounts to gross negligence in any given case must depend upon the facts and circumstances. What would amount to gross negligence under certain circumstances might, under different circumstances, be even slight negligence.” Morris v. Erskine, 124 Neb. 754.
This interpretation was adopted in later cases. Gilbert v. Bryant, 125 Neb. 731; Swengil v. Martin, 125 Neb. 745. In the present case it appears quite conclusively that the operator of the car at and near the point of accident was driving approximately 50 miles an hour; that Sixteenth street is one of the busy streets of Omaha, and was at the time considerably clogged with traffic. On the issue as to gross negligence each case must stand upon its own particular facts and circumstances. A rate of speed which
After a careful examination of the record and giving due consideration to the surroundings and all the circumstances present, we conclude that the evidence is sufficient to support the verdict. Consequently, the court did not commit error in submitting that question to the jury. However, in so holding we are not unmindful of the rule that, where one is confronted by an emergency, he is not negligent in not taking the course deliberate judgment might show to be the safer. This is not applicable to the present situation. The extension of that rule is also to the effect that one cannot claim the benefit of the doctrine where the emergency was brought about by the negligent act of the party seeking to invoke it. This rule is applicable only when a person is confronted by such an emergency, he having been placed in such a position by the exercise of ordinary care.
It becomes unnecessary to discuss the other assignments of error with the exception of the one predicated upon the trial court’s action in giving, upon its own motion, instruc
For reasons herein stated, the judgment is
Affirmed.