Bauer v. Griess

Decision Date23 December 1920
Docket Number21093
Citation181 N.W. 156,105 Neb. 381
CourtNebraska Supreme Court

APPEAL from the district court for Clay county: HARRY S. DUNGAN JUDGE. Affirmed.


Ambrose C. Epperson, Charles H. Sloan, Frank W. Sloan and Thomas J Keenan, for appellant.

Reese & Stout, contra.



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 he 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 past several years preceding his death earned $ 100 a month in the United States mail service. In addition to his work in the mail service he and his wife operated a picture show, the earnings of which are claimed to have been $ 250 a month. The record as to the net income from the picture show is indefinite and unsatisfactory, but the earnings definitely shown, owing to decedent's long life expectancy, is sufficient to sustain the judgment. A more serious question is perhaps presented because of the failure to prove the life expectancy of plaintiff. Deceased had a life expectancy of 30 years. The proper practice would require proof of the wife's expectancy. But she testified before the jury and they were able to form some judgment of her expectancy. Furthermore, when the point is not brought to the attention of the trial court, but is raised for the first time on appeal, the court will assume that the wife was not older than her husband, and that her life expectancy was equal to his.

The real point pressed for our consideration has to do with the rule under which liability may attach where one invites another to ride in his automobile, as a guest, and the guest is injured. Appellant contends that under such circumstances the owner of the car is not liable unless it is shown 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...

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