Landrum v. Roddy

• Decision Date: 26 November 1943
• Docket Number: 31594.
• Citation: 12 N.W.2d 82,143 Neb. 934
• Parties: LANDRUM v. RODDY.
• Court: Nebraska Supreme Court

12 N.W.2d 82

143 Neb. 934

LANDRUM v. RODDY.

No. 31594.

Supreme Court of Nebraska

November 26, 1943

Syllabus by the Court.

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

2. Gross negligence, within the meaning of section 39-1129 Comp.St.Supp.1941, means negligence in a very high degree, or the absence of even slight care in the performance of a duty.

3. An instruction, setting forth certain statutes regulating the use and operation of motor vehicles upon the highways, which contains that part of the statutes which provide that a violation thereof is a crime for which the violator should be punished is not error. In so far as Missouri Pacific R. Co v. Geist, 49 Neb. 489, 68 N.W. 640, is in conflict herewith the same is overruled.

4. A violation of statutes regulating the use and operation of motor vehicles upon the highways is not negligence per se but evidence of negligence which may be taken into consideration with all the other facts and circumstances in determining whether or not negligence is established thereby.

5. When an action under the guest statute is based on gross negligence, the comparative negligence statute is applicable. Sheehy v. Abboud, 126 Neb. 554, 253 N.W. 683, is overruled in so far as the same is in conflict herewith.

6. The maxim "volenti non fit injuria" means: If one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting therefrom. The maxim is predicated upon the theory of knowledge and appreciation of the danger and voluntary assent thereto.

7. Within the limits of its terms the maxim of "volenti non fit injuria" is applicable to negligence actions in this jurisdiction.

8. In actions based on negligence the defense of assumption of risk under the maxim "volenti non fit injuria" is not inconsistent with the defense of contributory negligence.

9. Under the facts of this case the question of whether or not the conduct of the appellee is such as to defeat any right to recover, to which she may be entitled, is one of contributory negligence and should be submitted to the jury.

Stiner, Boslaugh & Stiner, of Hastings, for appellant.

Blackledge & Conway, of Hastings, for appellee.

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

WENKE Justice.

This action was commenced in the district court for Adams county by Vivian G. Landrum, as plaintiff, to recover damages for personal injuries received in an accident occurring while riding as a guest in the car of Ruth Roddy, also known as Ruth Roddy Wood, defendant, who she alleged caused the accident by operating her car in a grossly negligent manner. Upon the issues joined the matter was submitted to the jury and verdict being rendered in favor of the plaintiff and judgment entered thereon, the defendant appeals.

For the purpose of this record the plaintiff, Vivian G. Landrum, will be referred to as the appellee and the defendant, Ruth Roddy Wood, will be referred to as appellant.

While the issues presented by the pleadings contain the question of the defendant's liability under the guest statute for injuries caused by appellant driving her car while being under the influence of intoxicating liquor, however, there is no evidence to sustain this allegation and the trial court was correct in not submitting that question to the jury. This, of course, does not affect the evidence of her drinking with reference to the question of whether or not she was guilty of gross negligence.

The pleadings admit that the accident complained of happened on the 26th day of September, 1941, at about 9:00 p. m. while appellee was riding as a guest of the appellant in her Pontiac car while they were traveling from Pueblo, Colorado, to Lincoln, Nebraska, to visit relatives and friends. It occurred at the southeast edge of the city of Hastings, Nebraska, at a place where U. S. Highway No. 6 forms a Y with Elm Avenue and that as a result thereof the appellee was injured.

The evidence discloses that appellee is the wife of John P. Landrum, a traveling salesman. That about March 1, 1941, they moved to Colorado Springs, Colorado, but that previous thereto they had become acquainted with Ruth Roddy, who subsequently thereto on July 5, 1941, married Mr. Wood and who is the appellant Ruth Roddy Wood. After the Landrums moved to Colorado Springs, which is about 42 or 43 miles from Pueblo where the appellant lived, the acquaintanceship between the appellee and appellant grew very quickly. After May 1, 1941, they were constantly together over weekends either one going to Pueblo or the other to Colorado Springs, each having her own car. The appellant was secretary-treasurer of the Western Acceptance Corporation located in Pueblo. Some time in June the appellee moved most of her clothes from Colorado Springs to Pueblo into the apartments occupied by the appellant and from then on spent a great deal of her time in appellant's company. Commencing in July and extending through until the time of the accident, with the exception of when she had an operation in the middle of August, the appellee, who had been trained as a stenographer, had part time work with the same company for which the appellant was secretary-treasurer. On July 5, 1941, the appellant was married and took about a two week wedding trip to the state of Washington where she left her car with her husband and thereafter the appellee's car was the one used by these parties for driving until the day of the accident. In connection with the appellant's work it was necessary as a matter of business that she contact the dealers of automobiles, who were their clients, and as such she visited various places in Colorado and New Mexico. She made such a trip in April, 1941, to Trinidad, Colorado, which was about 90 miles from Pueblo and on which trip the appellee went with her. The evidence shows that they drank together on this trip, although appellee denies there was any drinking in the car. The same thing is true with reference to a trip about the last week of July when they attended the Sky High Stampede at Monte Vista, Colorado, some 140 miles southwest of Pueblo. On the 4th or 5th of September appellee's son drove appellee and himself to Roswell, New Mexico, where the son was to attend a military school. Appellant took a train to Roswell, which is some 500 to 600 miles from Pueblo, to drive the car back as the appellee was not permitted to drive the car after the operation on her foot. They left Roswell on Friday afternoon and drove to Amarillo, Texas, where they stayed until Sunday afternoon when they drove home. On this trip drinking was indulged in. It appears from the evidence that on all of these trips and on all occasions, as the appellee states, the appellant was a good fast driver and she never complained about the speed at which the appellant drove, nor did she object to appellant driving her car. As to the trip made on September 26, 1941, during which trip the accident involved in this case happened, it is generally shown by the evidence, without dispute, that they left Pueblo about 12 noon mountain time and arrived in Hastings, Nebraska, where they stopped at the J. H. Wehn filling station about 7:45 mountain time or 8:45 central time. This distance is about 460 to 470 miles. They stopped at either two or three places on the route of travel to have the car serviced. This would give them an average driving speed of a little over 60 miles an hour without considering time out for stops. When they left Pueblo they put a bottle of Bourbon, a quart of buttermilk, and two sandwiches in the car, which sandwiches they ate shortly after they left Pueblo.

There is, however, this dispute in the evidence. Mrs. Landrum testifies that they opened the bottle of Bourbon shortly after they left Colorado Springs and each took a drink, that the appellant then took three or four drinks between there and Alma, Nebraska, where they arrived about 6:30 mountain time where they each took another drink. That after they had stopped, in Hastings, where they stayed for about fifteen minutes and just before they left, the appellee suggested they stop and eat and stay there overnight, but the appellant suggested they eat in Lincoln. Shortly before leaving the station the appellant took a drink and then shortly thereafter while driving away from the station but before reaching the viaduct took the bottle and took another drink while appellee held the steering wheel. Appellant stated, it being only about 100 miles to Lincoln they would be there in a few minutes. Appellee also testifies that while traveling during the day that on two different occasions she complained about the speed at which they were traveling, not because she thought it was dangerous but because it made her nervous. After they left the filling station at Hastings she was sitting on her foot and fixing her cosmetics when she looked at the speedometer as they were going down the viaduct, the north end of which is some four or five blocks from the scene of the accident, and noticed they were going about 80 miles an hour and again protested to the appellant of the high speed, especially at night. She remembers very little about the accident other than when they reached the Y where Elm Avenue extends north, the appellant failed to make the curve to the right on Highway No. 6 and continued straight ahead into the ditch on the right side of Elm Avenue where the car upset.

The appellant testifies that after they left Pueblo they opened the bottle of Bourbon at Goodland, Kansas, where they each had a drink and then did...