Carley v. Meinke
| Citation | 150 N.W.2d 256,181 Neb. 648 |
| Decision Date | 28 April 1967 |
| Docket Number | No. 36359,36359 |
| Parties | Ronald CARLEY, Appellant, v. Edward Milan MEINKE, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Whether or not gross negligence exists must be determined from the facts and circumstances of each particular case.
2. While each of several acts, standing alone, may not exceed the bounds of ordinary negligence, yet, when considered together, they may constitute evidence of
gross negligence. In such a case, whether or not gross negligence exists is for the jury.
3. In considering a motion for a directed verdict, the party against whom the motion is made is entitled to have every disputed question of fact in the evidence resolved in his favor, and to have the benefit of every inference that can reasonably be drawn therefrom.
4. The speed at which a motor vehicle is being driven under all the circumstances shown in the evidence is an important circumstance in determining questions of negligence on the part of the driver.
5. Evidence as to the drinking of intoxicants within a reasonable time prior to an accident is a circumstance to be considered in determining whether or not a driver of a motor vehicle is guilty of gross negligence.
6. The familiarity of a driver with the road upon which he is driving when an accident occurs is a circumstance to be considered in determining negligence or the degree thereof.
7. A guest is not required to use the same degree of care as the driver of the automobile. If a guest perceives danger, however, or should have perceived it under the circumstances shown by the evidence, a duty to warn the driver arises.
William H. Mecham, Jack L. Spence, Omaha, for appellant.
Sodoro & Meares, Omaha, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This is an action for damages for personal injuries sustained by the plaintiff while riding as a guest in an automobile owned and operated by the defendant. The defendant denied the existence of gross negligence and alleged contributory negligence and assumption of risk by the plaintiff. At the close of the evidence, the trial court sustained the defendant's motion for a directed verdict and dismissed the action. The plaintiff has appealed.
The plaintiff was an unmarried man about 23 years of age. On the evening of January 4, 1964, after drinking two bottles of beer, he rode with one Tomsu to the home of Steve Prerost to participate in a going away party. There he engaged in dancing, listening to music, and drinking. There he drank three or four beers, possibly more. Tomsu left early and the plaintiff sought and obtained a ride home with the defendant. They left the Prerost home in the defendant's car with the defendant doing the driving. Plaintiff was in the front seat with the defendant and Don Petrovich and Patrick Abbott occupied the back seat. Upon leaving the party, plaintiff observed that the defendant walked normally, talked coherently, and observed nothing unusual about him. No objection was made to the defendant as the driver at that time.
The defendant drove to Thirty-second Avenue and Vinton Street where the defendant stopped for a stop sign. No complaint is made of the defendant's condition or of his driving up to this point.
After crossing Thirty-second Avenue, the defendant began to increase his speed. When he crossed the viaduct over the interstate highway, plaintiff testified the defendant was traveling at a rate of 55 to 60 miles per hour. When he crossed the bridge over the railroad tracks, plaintiff said the defendant was traveling slightly over 60 miles per hour. Defendant admitted in a deposition that he was traveling from 55 to 60 miles per hour in passing over this section of the road.
Immediately east of the railroad overpass, a railroad track crosses Vinton Street. There were dips on each side of the track and the crossing itself was rough. Defendant hit the dip and plaintiff testified that he told the defendant 'to take it easy.' Defendant applied his brakes after hitting the dip. The defendant continued to drive from the dip to Twenty-fifth Street at 55 to 60 miles per hour, the defendant admitting that he drove this section of the road in excess of 50 miles per hour, but not more than 60 to 65 miles per hour. The defendant failed to negotiate a jog in the road at Twenty-fifth Street and the car sheared off a telephone pole, crashed through a fence on a private lot, and overturned. That plaintiff sustained serious injuries is not disputed. A police investigator estimated the distance from the dip to Twenty-fifth Street to be 600 to 700 feet. He found tire marks on the pavement for a distance of 70 feet which led to the sheared-off telephone pole. The police investigator talked with the defendant at the scene of the accident and smelled the odor of alcohol on his breath. The investigator testified that the surface of the street was armor-coated asphalt. The street was dry. It was dark and his measurements were made by the aid of car lights and a flashlight.
Defendant testified that he drank one glass of beer before he went to the party and that he drank from 6 to 10 cups of tap beer after his arrival. He testified that he felt no effects from the beer and that he was sober. He stated that he had driven this road many times and was familiar with the jog that he failed to negotiate. He said he had an appointment later to meet other friends at a cafe which he had intended to keep. He testified that he applied his brakes after hitting the dip but said he was going in excess of 50 miles per hour thereafter, but not to exceed 60 or 65 miles per hour. He testified that he heard no warning as to his driving from the plaintiff or anyone else in the car. He said that the plaintiff wanted him to drive faster by telling him several times: "Go faster; get on it."
Petrovich, one of the occupants of the rear seat, was called by the defendant as a witness. His testimony was substantially as follows: When they entered the car, plaintiff said: Defendant replied: "It goes pretty good." The witness said that Ed (Meinke) 'got on it' and plaintiff said: He stated that plaintiff told defendant, "Faster! faster," on five or six occasions. He said: 'We told Meinke to slow down; but Ron (plaintiff)...
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...as a whole.' NJI No. 7.51. See, also, Olson v. Shellington, supra; Paxton v. Nichols, 157 Neb. 152, 59 N.W.2d 184; Carley v. Meinke, 181 Neb. 648, 150 N.W.2d 256. * * * This court has frequently reiterated in slightly varying language that whether gross negligence exists must be ascertained......
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