Kaufman v. Tripple

• Decision Date: 15 July 1966
• Docket Number: No. 36256,36256
• Citation: 144 N.W.2d 201,180 Neb. 593
• Parties: Raymond KAUFMAN, Appellee, v. George TRIPPLE, Appellant.
• Court: Nebraska Supreme Court

Page 201

144 N.W.2d 201

180 Neb. 593

Raymond KAUFMAN, Appellee, v. George TRIPPLE, Appellant.

No. 36256.

Supreme Court of Nebraska.

July 15, 1966.

Syllabus by the Court

1. The guest statute, section 39--740, R.R.S.1943, provides two distinct grounds of recovery by a guest against his host for negligence, one where the host driver is under the influence of intoxicating liquor in which event he is liable for ordinary negligence, and the other where the host is guilty of gross negligence.

2. Where a party tenders an instruction to the court, he may not after an adverse verdict complain of its submission to the jury.

3. Evidence as to a host's drinking of intoxicants a short time previous to an accident is a circumstance in determining whether or not the host was guilty of gross negligence.

4. The contributory negligence of a guest is ordinarily a question of fact for the jury.

5. It is essential to the defense of contributory negligence that negligence of the plaintiff be a proximate cause or a proximately contributing cause of the injury.

6. A guest is not required to use the same degree of care as the driver of the automobile. If a guest perceives danger, or should have perceived it under the circumstances shown by the evidence, a duty to warn the driver arises. Ordinarily, however, a guest need not watch the road or advise the driver in the management of the automobile.

7. It is not contributory negligence for a guest to sleep riding in an automobile when he was has no knowledge of negligent driving on the part of his host, or of impending danger on the highway.

8. Assumption of risk available as a defense when one voluntarily exposes himself to the injury, even though it plays no part in causing the injury.

9 The defenses of contributory negligence and assumption of risk are not inconsistent defenses, although the evidence as to one may tend to prove the other.

10. The general rule is that profits derived from a business are not to be considered as earnings and cannot be used as a measure of loss of earning power, but where profits are almost entirely the direct result of personal management and endeavor, they are admissible for the sole purpose of estimating loss of earning capacity.

11. The fact that a person was not engaged in a gainful occupation when injured by the negligence of another does not bar recovery for impairment of his earning capacity.

Holtorf, Hansen & Kortum, Gering, for appellant.

W. H. Kirwin, Scottsbluff, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and COLWELL, District Judge.

CARTER, Justice.

This is an action by Raymond Kaufman to recover damages for personal injuries suffered by him while riding as a guest in an automobile owned and operated by George Tripple. The jury returned a verdict for Kaufman against Tripple in the amount of $21,974.75. Tripple has appealed.

On May 31, 1962, Tripple was engaged in the wholesale distribution of beer and had been so engaged for 10 years. At 10 a.m on said day, Kaufman was in George's Tavern in Gering when Tripple came in. Tripple told Kaufman he had to call on beer customers in Bayard and Bridgeport and asked Kaufman to ride along with him. Kaufman accepted the investion on condition that they would be back between 5 and 6 o'clock p.m.

They left in Tripple's automobile traveling east on Highway No. 92, to Melbeta, where they stopped and visited with a customer for a few minutes. They then continued on east to Highway No. 26, where they turned north into Bayard, the intersection of Highways Nos. 92 and 26 being the place of the accident in this case. They went to Reifschneider's Tavern where they had a beer and Tripple discussed his business. They then went to Schwartz' Tavern where, according to Kaufman, they had another beer and Tripple's business was transacted. They then went to lunch with one Walt Bretzer, who later accompanied them to Bridgeport. They went south on Highway No. 26 to Highway No. 92 and turned east to Bridgeport, where they remained for a couple of hours. They returned to Bayard over the same route they traveled going to Bridgeport and went to Reifscheider's Tavern where they had a beer or two. They went from there to Schwartz' Tavern where they remained until 11:15 p.m. Kaufman played pool while Tripple bought beer for customers. Kaufman testified that Tripple drank 8 or 9 bottles of beer and Tripple testified he bought but one. As they left, Kaufman asked Tripple if he was in condition to drive and Tripple assured him that he was. They got into the automobile, Tripple driving, and headed south on Highway No. 26. Kaufman leaned back and relaxed and was aroused when the car hit one of the islands at the intersection of Highways Nos. 26 and 92, the intersection which they had negotiated three previous times that day. The car careened across Highway No. 92, went into the ditch, and hit its south bank head-on. Kaufman was very seriously injured and Tripple suffered a broken arm and cuts. The automobile was being driven 40 to 50 miles per hour when the accident occurred. There was a warning of a stop sign ahead a half block north of the intersection and stop signs to the east and west entrances to Highway No. 92. There were wheel marks on the pavement caused by the braking of the car beginning 9 feet north of the point where the automobile struck the curb of the island. Tripple testified that he fell asleep at the wheel and that he applied the brakes when the island was struck. Kaufman testified that he asked Tripple after they left Bayard if he felt able to drive and was again assured that he was all right. Tripple denies that this conversation took place.

The intersection where the accident occurred is located about 3 miles south of Bayard. Highway No. 92 is substantially an east and west road. Highway No. 26 intersects Highway No. 92 from the north, forming a T-intersection. An island in Highway No. 26 extends north approximately 200 feet from the north side of Highway No. 92. The usual turning lanes for leaving and entering from one highway to the other are provided. Tripple struck the curb of the island and traveled approximately 94 feet before running into the south ditch of Highway No. 92.

Tripple contends that the evidence is insufficient to sustain a finding of gross negligence under the guest statute and that the trial court erred in overruling his motions for a directed verdict and in submitting the issue to the jury. Under the evidence in the record the jury could properly find that Tripple had been drinking beer intermittently most of the afternoon and evening, and drank 8 or 9 bottles of beer from 5 p.m. to 11:15 p.m. The evidence shows that Tripple approached the intersection at 40 to 45 miles per hour and failed to observe or comply with the warning and stop signs protecting Highway No. 92. Tripple admits that he fell asleep and was aroused only when his automobile struck the curb of the island.

The patrolman who investigated the accident testified that in his opinion Tripple was under the influence of liquor at the time of the accident. From the evidence herein summarized, the jury could properly find that Tripple was under the influence of liquor when the accident occurred.

Section 39--740, R.R.S.1943, provides in part: 'The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver of such motor vehicle being under the influence of intoxicating liquor or because of the gross negligence of the owner or operator in the operation of such motor vehicle.'

The foregoing provision of the guest statute provides for two distinct grounds of recovery. One exists if the host driver is under the influence of intoxicating liquor in which event such driver is liable to a guest for ordinary negligence. The other exists only if the host is guilty of gross negligence. Tripple complains that the petition does not allege that Tripple was under the influence of intoxicating liquor within the meaning of the first ground of liability stated therein and that the trial court erred in submitting that issue to the jury. The issue was submitted by the court's instruction No. 5 in part as follows: 'The burden of proof in this action is upon the plaintiff, and before plaintiff can recover, he must prove by a preponderance of the evidence all of the following propositions: (a) That the defendant was under the influence of alcoholic liquor or was guilty of gross negligence in one or more of the particulars set out in plaintiff's petition; (b) That the defendant being under the influence of alcoholic liquor or the gross negligence of the defendant was the sole proximate cause of the accident; (c) That plaintiff was damaged by reason of defendant's gross negligence or his being under the influence of alcoholic liquor; (d) The amount of such damages.'

The instruction was an exact copy of instruction No. 1 requested by Tripple. It is fundamental that a party may not tender an instruction to the court and then, after an adverse verdict, object to its submission to the jury by the court.

Tripple asserts, however, that motions for a directed verdict made at the close of plaintiff's evidence and at the close of all the evidence were erroneously denied. In Cunning v. Knott, 157 Neb. 170, 59 N.W.2d 180, this court said: 'There is no contention here that defendant was driving under the influence of intoxicating liquor within the meaning of section 39--740, R.R.S.1943. The evidence as to this drinking intoxicants, however, is a circumstance to be considered in determining whether defendant was guilty of gross negligence.'

We think the evidence of Tripple's drinking throughout the day, the testimony of the patrolman that Tripple was intoxicated at the time of the accident, his admission that he fell asleep at the...