Komma v. Kreifels
| Decision Date | 19 May 1944 |
| Docket Number | 31785. |
| Citation | 14 N.W.2d 591,144 Neb. 745 |
| Parties | KOMMA v. KREIFELS. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It indicates the absence of even slight care in the performance of a duty.
2. What amounts to gross negligence in any given case must depend upon the facts and circumstances. What would amount to gross negligence under certain circumstances might, under different circumstances, be even slight negligence. Ordinarily, the question of negligence, whether slight or gross, is one of fact. If the evidence respecting it is in conflict and is such that ordinary minds might draw different conclusions therefrom, then a question of fact is presented for the jury to determine.
3. In an action for gross negligence under the automobile guest statute (Comp.St.Supp.1941, sec. 39-1129), where there is adequate proof of negligence, a verdict should be directed for defendant only where the court can clearly say that it fails to approach the level of negligence in a very high degree under the circumstances. In all other cases, it must be left to the jury to determine whether it amounts to gross negligence or to mere ordinary negligence.
4. Where there is no evidence connecting the use of intoxicating liquors with the cause of an automobile accident, and where shortly after an accident, the seriously injured driver was asked: "How he was getting along" and answered "I'll never drink anymore," the answer standing alone, does not constitute an admission that the defendant had been drinking intoxicating liquors, nor that he was under the influence of such liquors at the time of the accident.
5. A statement to be admissible as a part of the res gestae must have been spontaneous and impulsive, and made at a time and under such circumstances as to induce the belief that it was not the result of reflection and premeditation.
6. The doctrine of assumption of risk has no application in a case where, although the guest in an automobile had previously ridden with his host, the host was considered to be a safe driver, had never had an accident and the host testified that there was no occasion to protest his manner of driving prior to an accident in which the guest was killed.
Lloyd E. Peterson and Betty Jean Peterson, both of Nebraska City, for appellant.
Jessen & Dierks, of Nebraska City, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, and WENKE, JJ.
This is an action brought to recover damages for the death of plaintiff's intestate, and involves the guest statute. Trial was had. At the close of all the evidence, the trial court sustained a motion to dismiss plaintiff's action on the ground that gross negligence was not shown. Plaintiff appeals. We reverse the judgment of the trial court and remand the case.
We state the evidence relative to the issue presented in the light of the rule that ' Bainter v. Appel, 124 Neb. 40, 245 N.W. 16, 17. The same rule applies to a motion to dismiss for insufficiency of the evidence.
The place of the accident was some three miles west of Nebraska City on a graveled country highway which runs east and west. At the place where the accident occurred, the highway is 66 feet wide, the improved portion was 28 feet from shoulder to shoulder. Looking west the highway goes over a rather sharp hill and enters a valley. To the south of the shoulder of the highway was a slight depression running parallel with the road. Along the fence line there was a 50-year old Osage hedge-row. This was about 15 feet from the edge of the shoulder of the road. The hedge had been cut down, leaving large stumps sticking out of the ground. It had a second growth. Some of this growth had been trimmed to make posts; wire was attached thereto; and a live hedge was along the line. There was a power line pole located between the hedge and the graded portion of the road. This was about 315 feet beyond the crest of the hill.
About 4:30 p. m. on March 2, 1943, a car making "an awful roar," traveling at an "awful rate" and raising an unusual and "terrible cloud" of dust, went west past the crest of the hill. The accident followed immediately. The sheriff and a near by resident inspected the scene within a few minutes after the accident. The tracks of the car were clearly visible. They went west 50 feet beyond the crest of the hill and on the right-hand side of the road. They then turned to the southwest and went 180 feet further on the graveled portion of the highway. They then traveled 20 feet in the depression, then hit and ran alongside of or on the hedge for 65 feet to the power line pole, past it a few feet, then turned abruptly to the left and the car came to a stop, headed almost due east, some 15 or 20 feet south of the power line pole. The marks of the tire treads were clearly visible along the highway, into the depression and up to the hedge. They were somewhat deeper in the lower part of the depression. There were no skid marks. During its progress down the hedgerow, the car broke off three fence posts, hit, sheared off and broke off the tops of some 12 or 15 of the stumps, throwing a large part of one stump about 25 feet, hit the power pole on its south side, knocked down and sheared off the hedge, leaving a pile of debris beyond the power pole, where it made the abrupt left-hand turn.
The right-hand door of the car was found some ten feet east of the power pole. The deceased, unconscious, covered with hedge brush, his head crushed, was found lying on the ground about ten feet east of the power line pole. He died from his injuries shortly thereafter. Pictures in evidence show two stumps, larger than the power pole in diameter, to the east of the place where deceased's body was found.
The car was damaged front, back, top, bottom, inside and outside. The right-hand door was torn off; the rear trunk door was off; the right and left fenders were caved in; the top was crushed in; the lining was torn on the inside of the car; and contents from the car were in the pile of debris at the turn beyond the pole. The left front tire was down and almost torn from the wheel; the left rear tire was down and the left rear wheel was locked. The left rear brake rod was bent, which caused the locking of the wheel.
The deceased and the defendant were old acquaintances. Deceased had ridden with defendant before, and defendant was considered "a safe driver." Defendant was seriously injured. Shortly after and on the afternoon of the accident, defendant said: "When he got over the hill the car went out of control." Some weeks later he told a witness that "they were going down the road and he looked out the side and when he turned back he thought he saw something in the road and tried to turn out for it and tried to turn back."
Defendant by his answer admitted that he owned the automobile; that on the day in question he was driving it west of Nebraska City; that an accident occurred; and that deceased was riding as a guest in the automobile with him.
At the close of plaintiff's case in chief, defendant moved for an instructed verdict on the ground that the evidence did not show defendant guilty of gross negligence. The motion was overruled. Defendant then testified in his own behalf that he and deceased left Nebraska City, going west, about 3:45 p m.; that ...
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