Belik v. Warsocki
| Decision Date | 30 March 1934 |
| Docket Number | 28789 |
| Citation | 253 N.W. 689,126 Neb. 560 |
| Parties | AGNES BELIK, APPELLEE, v. MIKE WARSOCKI, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. In an action by a guest against a motorist for personal injuries caused by the latter's negligence, it is necessary, under the guest law, for plaintiff to allege and prove that defendant was guilty of gross negligence.
2. In determining whether the evidence is sufficient for submission to the jury on the issue of gross negligence of a motorist in an action against him by a guest for personal injuries, the trial court should consider all evidential facts and circumstances surrounding the particular case, including evidence of speed which might amount to gross negligence in one case and fall far short thereof amid different surroundings and dissimilar circumstances in another.
3. In the motorists' guest law (Comp. St. Supp. 1931, § 39-1129), " gross negligence" indicates a degree of negligence greater than want of ordinary care or slight negligence; negligence of a very high degree and absence of even slight care in the performance of duty, but does not necessarily extend to wanton or wilful or intentional disregard for a guest's safety.
4. Where one driving an automobile is suddenly confronted by an emergency, requiring instant decision, he is not necessarily guilty of negligence in pursuing a course which mature reflection or deliberate judgment might prove to be wrong.
5. A party driving an automobile lawfully, upon his proper side of the highway, who observes an approaching car, has a right to assume that the driver of the oncoming car will not violate the law in passing.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Agnes Belik, by Joseph Chladek, her father and next friend, against Mike Warsocki. Judgment for plaintiff, and defendant appeals.
Judgment reversed, and cause remanded.
Reed, Ramacciotti & Robinson, for appellant.
Gray & Brumbaugh and Leo Fried, contra.
Heard before GOSS, C. J., ROSE and PAINE, JJ., and CHASE and ELDRED, District Judges.
This action is to recover damages for personal injuries alleged to have been occasioned by an automobile accident. The case was tried to a jury resulting in a verdict for the plaintiff, and from the action of the trial court overruling a motion for new trial and rendering judgment on the verdict the case is presented to this court for review.
Numerous grounds are assigned for reversal, one of which is that the court erred in overruling defendant's motion to direct a verdict. Another is that the verdict of the jury is contrary to the evidence. We shall confine our discussion to these two propositions.
The plaintiff alleges for her cause of action that she was riding in an automobile as the guest of the defendant, and that due to the gross negligence of the defendant in the operation of the automobile he caused the same to overturn, from which she suffered injuries.
The facts may be summarized as follows: Late in the afternoon of November 13, 1931, the plaintiff, her mother and stepfather, her sister, being the wife of the defendant, and the defendant, her brother-in-law, together with two small children, were all returning to their home in the city of Omaha from the funeral of a half-sister, which they had attended. They were traveling over highway No. 16, which is paved by a concrete slab approximately 18 feet in width. When they reached a point a few miles east of where the road crosses the Elkhorn river bridge in Douglas county, traveling in an easterly direction, the defendant driving, at a rate of speed from 40 to 45 miles an hour, the car approached near three girls walking east, side by side, along the north edge of the pavement, occupying about four or five feet thereof. As the defendant's car approached near these pedestrians a car came from the east, both cars reaching the girls about the same time. The car coming from the east, in an apparent endeavor to pass the girls, suddenly turned to the south, five or six feet across the black line in the middle of the pavement. The defendant, startled by the sudden appearance of the approaching car in his lane of travel, in order to avoid colliding with the same, suddenly turned his car to the right until the two right wheels were off the pavement. After passing the girls he turned the car to the left trying to get back upon the pavement, which is four or five inches higher at that point than the earth shoulder along the south edge. In making the turn the right front wheel caught the edge of the pavement, causing his car to swing, and as it climbed up on the pavement it veered about somewhat, lost its equilibrium and turned over on its side, sliding into the ditch on the south side of the pavement, where it finally stopped.
What we are called upon to determine, under the facts presented by the record, is whether or not there was sufficient evidence of gross negligence, which was the proximate cause of the plaintiff's injuries, as would warrant the court in submitting the question to the jury.
The plaintiff contends that the driver was guilty of gross negligence, in that he was operating the automobile at a high rate of speed with his right hand, while his left arm was upon the window. This claim is hardly borne out by the evidence, as his wife, who was sitting in the front seat with the defendant, testifies that he was sometimes accustomed to drive in that manner, but at that time she would not say whether he had been or not. The defendant testified that he was using both hands in the operation of the automobile. The guest law applicable to this case pr...
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