Eilts v. Bendt

• Decision Date: 27 April 1956
• Docket Number: No. 33900,33900
• Citation: 162 Neb. 538,76 N.W.2d 623
• Parties: Jacob EILTS, Appellant, v. Russell F. BENDT and Darrell Glissendorf, Appellees.
• Court: Nebraska Supreme Court

Page 623

76 N.W.2d 623

162 Neb. 538

Jacob EILTS, Appellant, v. Russell F. BENDT and Darrell Glissendorf, Appellees.

No. 33900.

Supreme Court of Nebraska.

April 27, 1956.

Syllabus by the Court.

1. A guest by the terms of section 39-740, R.R.S.1943, is a person who accepts a ride in a motor vehicle without giving compensation therefor.

2. A person riding in a motor vehicle is a guest if his carriage confers only a benefit upon himself and no benefit upon the owner or operator except such as is incidental to hospitality, social relations, companionship, or the like, as a mere gratuity.

3. Gross negligence means great and excessive negligence; that is, negligence in a very high degree. It indicates the absence of slight care in the performance of a duty.

4. The existence of gross negligence must be determined from the facts and circumstances in each case.

5. The violation of traffic regulations concerning stop signs, speed, the manner of operating a motor vehicle on the highway, and the like is not negligence as a matter of law of any kind or degree, but it is a fact to be considered with the other evidence in the case in deciding an issue of negligence.

6. A guest to recover damages for injuries received by the guest while riding in a motor vehicle against the owner or operator of such vehicle must prove by the greater weight of the evidence in the case the gross negligence of the host or operator of the vehicle relied upon by the guest and that it was the proximate cause of the accident and injuries.

7. A judgment will not be reversed for errors against a party not entitled to succeed in any event.

8. Record examined and held to be insufficient to support a finding of gross negligence on the part of the driver of the defendant's car.

Davis, Healey, Davies & Wilson, Lincoln, Carstens & Pickett, Beatrice, L, Kenneth Cobb, Robert Berkshire, Lincoln, for appellant.

Chambers, Holland & Groth, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff, Jacob W. Eilts, brought this action at law in the district court for Lancaster County against Darrell Glissendorf and Russell F. Bendt as defendants to recover damages for personal injuries sustained by him due to a collision between an automobile in which he was riding as a guest driven by Russell F. Bendt, and another automobile operated by Nora Dowling. The collision occurred on U. S. Highway No. 81 in Madison County. The cause was tried to a jury, resulting in a verdict in favor of the defendants. The plaintiff filed a motion for new trial. From the order overruling the motion for new trial, the plaintiff appeals.

The plaintiff's petition alleged in substance that on or about September 25, 1951, the plaintiff was riding as a passenger in a 1949 2-door Ford which was in the possession of Darrell Glissendorf who exercised control over the operation of said vehicle which was driven by Russell F. Bendt in a southerly direction on U. S. Highway No. 81 at a point approximately 1 1/2 miles south of Norfolk, Nebraska, when, as a proximate result of the grossly and willfully negligent acts of omission and commission of the defendants and each of them, the 1949 2-door Ford collided head-on with a 1934 Ford operated by Nora Dowling. The petition alleged grossly negligent acts on the part of the defendants which need not be set out.

The defendants' answer admitted the occurrence of the accident and that plaintiff sustained injuries. The answer then alleged that the plaintiff, at the time of the accident, was a guest passenger in said automobile; that at the time of the accident the defendant Russell F. Bendt was driving said automobile in a careful and prudent manner and at a time when the headlights were operating on the automobile he was driving and on other automobiles using said highway at that time and place; and further alleged that suddenly and without any negligence on his part he met with an emergency in that an oncoming car approached the point on the highway where this accident occurred without operating headlights so that the defendant was unable to see said automobile until it was so close to him that an accident was unavoidable and a collision occurred. Further answering, the defendants specifically denied each allegation of negligence on their part alleged by the plaintiff, and denied each and every other allegation contained in the plaintiff's petition not specifically admitted.

The reply was in effect a general denial of the allegations of the defendants' answer, with the exception of certain admissions contained therein.

The plaintiff assigns as error that the trial court erred in failing to instruct the jury that if it found the defendants or either of them were guilty of gross negligence, then the negligence, if any, of the driver of the 1934 Ford would not constitute a defense in favor of the defendants unless it found that the negligence of the driver of the 1934 Ford was the sole and proximate cause of the plaintiff's injuries and damage; or, in other words, that the defendants would be liable notwithstanding the negligence, if any, of the driver of the 1934 Ford if it found the defendants, or either of them, guilty of gross negligence.

The record discloses that Darrell Glissendorf, Russell F. Bendt, and Jacob W. Eilts were soldiers in the United States Army stationed at Fort Riley, Kansas. They were in the same company and had a casual acquaintance with each other. Glissendorf lived near White Lake, South Dakota; Bendt lived at Sherman, South Dakota; and Eilts lived at Ree Heights, South Dakota. At or about noon on September 22, 1951, those in authority announced that week-end passes would be issued. As soon as Glissendorf found out that passes were to be issued, he decided to go home. He went into the barracks and announced that he was going to South Dakota, and if there was anybody that would like to go along, they could. Bendt and Eilts said they would like to go. The three of them talked the matter over and finally decided they would go together. Glissendorf had possession of a 1949 2-door Ford, the title of which was in the name of Glissendorf and Sons. The car was in Junction City. They went to Junction City, and something was said about sharing expenses. Glissendorf said that it would not be necessary as he was going home anyway and it would not cost him anything to take them along. On the way to South Dakota, Bendt and Eilts were delivered at certain places to enable them to get to their respective homes. On the return trip to Fort Riley, Glissendorf picked up Eilts and Bendt at the places agreed upon, and the three of them proceeded toward Fort Riley. They took U. S. Highway No. 81, south. This was on Sunday, September 23, 1951. Eilts testified that he thought it was approximately 580 miles from South Dakota to Fort Riley. He also thought that on one occasion while he was on the trip he purchased gas. Glissendorf and Bendt testified to the contrary. Eilts got into the back seat of the car and went to sleep, and was asleep at the time of the accident. He had no knowledge of what occurred. He saw Glissendorf and Bendt drive, and thought they both drove carefully.

Bendt testified that when they arrived at Wausa, Nebraska, they all went into the rest room. When they came out, Glissendorf paid for the gas. There was a car behind their car that wanted to get to the gas pump, so he got into the driver's seat to move the car out of the way. Glissendorf got in next to him and told him he could drive for awhile. Wausa is about 40 miles north of Norfolk. About 20 miles out of Wausa, Glissendorf turned on the car lights because it was getting dark, the clouds were low, and it was misting a little. After that Glissendorf went to sleep and knew nothing about the occurrence of the accident.

Bendt testified that the headlights on the car continued to burn at all times; that just south of Norfolk there is an airport; that U. S. Highway No. 81 is black-top and at the place of the accident the highway was level; that he drove up behind a south-bound car going in the same direction as the car he was driving; that it was going slower than he was, and he overtook it; that when he got right up behind this car he pulled out a little ways to see if anything was coming from the opposite direction; and that he did not see any car approaching from the south, so he blinked his lights and proceeded to pass the car ahead of him. When he was about even with it, a 1934 Ford coach appeared at a distance of 100 or 150 feet ahead of him. It was coming from the south, going north. He was unable to get back onto his own side of the highway. There were no headlights burning on the car coming from the south toward him. The first thing he saw was the headlights of the car he was driving reflecting on the oncoming car and showing somewhat of a beam on the pavement. When he pulled out to go around the car in front of him, he was going 45 or 50 miles an hour. He was not asleep at the time of the accident, and there is no evidence that he was. He believed the oncoming car was traveling at a speed of 20 to 25 miles an hour, and the car ahead of him was traveling at a speed of 40 to 45 miles an hour.

A Mr. Evans testified that on the day of the accident he was driving a 1949 Fraser automobile from his home in Neligh to Lincoln with some young ladies that he knew who were employed at St. Elizabeth Hospital in Lincoln; and that when he left Neligh, which is about 35 miles from Norfolk, it was raining intermittently, and misting. It was a murky, dark, dreary day. He had his headlights on. When he arrived at Norfolk it had more or less quit raining. When he was in the vicinity of the airport on U. S. Highway No. 81, he was aware that a car was following him. His attention was called to this fact when he was a mile or so north on the highway, by watching through his...