Kovar v. Beckius
| Decision Date | 05 November 1937 |
| Docket Number | 30101. |
| Parties | KOVAR v. BECKIUS ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " The term ‘ gross negligence', as used in the automobile guest statute (Laws 1931, c. 105), signifies a degree of negligence greater than want of ordinary care or slight negligence, but not necessarily extending to wanton wilful, or intentional disregard for the guest's safety." Sterns v. Hellerich, 130 Neb. 251, 264 N.W. 677.
2. " The existence of gross negligence must be determined from the facts and circumstances in each case." Morris v. Erskine, 124 Neb. 754, 248 N.W. 96.
3. Whether the driver of an automobile is guilty of gross negligence, where he is familiar with the highway and has been previously warned, and where, in order to pass a car going in the same direction, he turns into a cloud of dust which the lights of his car failed to penetrate until he passed such car, going down the grade of a steep hill at a speed of 60 to 65 miles an hour, following a ridge of gravel, and after proceeding two car lengths beyond the car which he passed, strikes holes in the edge of the road, not in the highway proper, and loses control of his car, and the car bounces up and down and sways back and forth, and runs into a ditch, and a guest in the car is injured, presents a question for the jury.
4. " Instructions given to a jury must be construed together, and if, when considered as a whole, they properly state the law, it is sufficient." Clausen v Johnson, 124 Neb. 280, 246 N.W. 458.
5. " Where a requested instruction is refused by the trial court, but the court embodies the same idea in an instruction given upon its own motion, the party requesting such instruction having suggested it to the court will not be heard to complain that it is erroneous." Vorce v. Independent Telephone Co., 86 Neb. 27, 124 N.W. 836.
6. " It is proper practice for court to refuse to submit to jury defense not supported by evidence." Sterns v. Hellerich, 130 Neb. 251, 264 N.W. 677.
7. Under the facts disclosed by the record, held that the plaintiff did not assume the risk.
Appeal from District Court, Butler County; Landis, Judge.
Action by Marjorie Kovar against John Beckius and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
L. R. Doyle, of Lincoln, Frank Mizera, of David City, and Bernard S. Gradwohl, of Lincoln, for appellants.
Thomas & Thomas, of Omaha, and Coufal & Shaw and Ray E. Sabata, all of David City, for appellee.
Heard before GOSS, C. J., and ROSE, EBERLY, DAY, PAINE, and MESSMORE, JJ., and KROGER, District Judge.
This is an appeal from a jury verdict in the district court for Butler county, wherein the plaintiff recovered damages for personal injuries sustained by virtue of an automobile accident.
The amended petition of plaintiff alleges the topography of the highway, charges gross negligence on the part of defendant John Beckius in certain particulars, and prays damages sustained by plaintiff. The defendants' answer contains a general denial, the defense of contributory negligence, and alleges that plaintiff assumed the risk, failed to object to or protest against the driving of John Beckius, and was acquainted with the proficiency and ability of the driver. The evidence reflects that the DeSoto automobile was driven by the defendant John Beckius, with the consent of the owner, Nick Beckius. For convenience, defendant John Beckius will be hereinafter referred to as the defendant.
On September 24, 1935, at 10 p. m., or shortly thereafter, defendant, driver of the automobile, the plaintiff, Marjorie Kovar, seated with him, and Howard Kovar, plaintiff's brother, sitting behind the driver, with Rose Sabata at Howard Kovar's right, in the rear seat, were proceeding north from David City on the David City-Schuyler road.
The immediate facts in this case relate to the method and manner of driving the car from the top of " Demuth Hill" down the grade of said hill. The testimony of the witnesses for plaintiff and defendants as to the grade and topography of the hill is so similar that no controversy arises therefrom. " Demuth Hill" is composed of light clay soil, which easily powders, erodes and washes. It does not hold gravel well, the gravel not working into it. The road grade is approximately 32 feet wide and is maintained to within two feet of the edge of the road grade because of the washing of gravel. The outer edge of the gravel ridge was about two and a half feet wide, which left 26 feet of clearance on the west edge of the gravel to the extreme west edge of the highway. On the night of the accident, there were cuts and holes in the outer edge of the road grade about 20 feet north of Demuth driveway, one of which was about two and one-half feet long and about six inches wide. There were also two washouts of smaller dimensions. The traveled portions of the highway were free from these washouts. " Demuth Hill" is a high hill, with steep banks, and, in order to construct a passable road grade, it was necessary to remove the dirt from the hill and construct a grade from the hill to the valley, which grade extended upward from the natural elevation, so that the grade was higher than the level of the land on either side.
Defendant testified that he was driving around 35 miles an hour on his own side of the highway and maintained such speed until he arrived at " Demuth Hill," when he saw an automobile, traveling north on its own right side of the road, which later developed to be the Rudolph Vrba car. Defendant started to increase his speed to go around the Vrba car when he was a distance of 150 feet from the top of " Demuth Hill" south. He followed the Vrba car over the top of the hill and about half the distance down hill, and then asked his companions if he should pass the car. One of them said " O. K." He then started to pass the Vrba car, increasing his speed slightly, and, watching ahead, he could see the road. He testified that there was a space of about three feet between his car and the Vrba car when he passed, and about three feet between his car and the edge of the road; that he did not know whether he got clear past the Vrba car; that the first time he was aware of any trouble was when his car started to bounce and gave a severe jolt; that he did not remember going down the road or into the ditch. He testified further that he had driven the highway on an average of two or three times a week, knew the road and knew that the soil on " Demuth Hill" washed easily and that grades were made to fill in low places where they were washed out at the edge of the road, but that, until the night of the accident, he did not notice the holes in the highway which his car struck; that plaintiff made no complaint of his driving and gave no warning.
Rudolph Vrba testified that he was traveling the highway at about 10:15 on the night of the accident, and that his car was proceeding at about 40 miles an hour; that defendant's car overtook him on the north slope of the extreme right side of the road and passed quickly; that there was considerable room between the two cars as defendant's car passed and went on swiftly about two car lengths ahead of witness' car; that at that point defendant's car started to bounce up and down and went into the ditch, swaying back and forth as it went, but that it stayed on its wheels; that all of a sudden the radiator of the car shot up on the side, and the car rolled over twice; that when defendant's car went into the ditch it traveled 150 feet before it came to rest.
The plaintiff testified that she was familiar with " Demuth Hill; " that she had driven with the defendant on many occasions and knew the manner of his driving and his way of passing other cars; that he would accelerate the speed of his automobile and not drive parallel with the car which he was passing, but would increase his speed to go around quickly; that at the time of the accident, as they reached the top of " Demuth Hill" they saw a car towards the east; that the defendant said: " There goes Nick Meisenberg, he isn't going to beat us very much to Schuyler; " that defendant stepped on the gas, the car gained speed, and Rose Sabata yelled: " Look out Johnnie; " that defendant had turned to the left side of the road which was heavy with dust, the lights of his car not penetrating through the dust, and that after traveling a short distance she noticed that they were passing the car of Rudolph Vrba; that there was a wide space between the two cars at the time of passing; that defendant's car was proceeding north along the edge of the shoulder of the road; that defendant did not diminish his speed after the warning given by Rose Sabata. Plaintiff remembered nothing further relative to the accident.
The wrecked car, 20 minutes after the accident, was facing southeast. The measurements taken disclosed certain tracks from the point of Demuth driveway north, right on the ridge of the west edge of the road, for about 200 feet, which track apparently " hung" to the west edge of the road bank, and for about 200 feet...
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