Luther v. Pawling

• Decision Date: 01 April 1976
• Docket Number: No. 40160,40160
• Citation: 240 N.W.2d 42,195 Neb. 679
• Parties: Karl J. LUTHER, Administrator of the Estate of Michael E. Luther, Appellant, v. Timothy W. PAWLING, a minor, and Duane F. Pawling, his father, Appellees.
• Court: Nebraska Supreme Court

Page 42

240 N.W.2d 42

195 Neb. 679

Karl J. LUTHER, Administrator of the Estate of Michael E. Luther, Appellant, v. Timothy W. PAWLING, a minor, and Duane F. Pawling, his father, Appellees.

No. 40160.

Supreme Court of Nebraska.

April 1, 1976.

Syllabus by the Court

1. A benefit removing an occupant riding in the motor vehicle of another from the provisions of the guest statute must be a tangible and substantial one to the owner and a motivating influence for his furnishing the transportation.

2. Gross negligence within the meaning of the motor vehicle guest statute means gross and excessive negligence or negligence in a very high degree; the absence of slight care in the performance of duty; an entire failure to exercise care; or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the safety of others.

3. The presence of imminence of danger visible to, known by, or made known to a driver, together with a persistence in negligence heedless of the consequences, are factors to be given material, if not controlling, consideration in the determination of gross negligence.

4. Negligence that is purely momentary in nature generally does not constitute gross negligence.

5. Negligence is never presumed. The mere happening of an accident does not create a presumption or authorize an inference of negligence.

Thomas B. Thomsen, Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for appellant.

C.J. Gatz, Jewell, Otte, Gatz, Collins & Domina, Norfolk, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an action for the wrongful death of Michael E. Luther, a minor, brought by the decedent's father as administrator of his estate, against Timothy W. Pawling, the driver of the car in which Mike was a passenger, and Duane E. Pawling, the owner of the car and the father of Tim W. Pawling. The District Court sustained the defendants' motion for a summary judgment. We affirm the judgment of the District Court.

The pertinent facts follow: On August 15, 1972, the day of the accident, Mike Luther, his sister, Debbie, Tim Pawling, and his three younger sisters were all working in the bean fields of Mr. Krohn, a neighbor. The Pawlings and the Luthers were first cousins to each other. Tim and Mike had worked in the bean fields before, and it appears that Krohn had contacted Mrs. Pawling to see if the children wanted to work for him, and that subsequently they did. When Krohn paid the children for their work, he gave one check to the Luthers and one check to the Pawlings.

There are some discrepancies in the evidence as to how Tim and Mike got to the bean fields in the days preceding the accident, but none on any of the material facts pertinent to the issues presented in this case. Mike furnished his own transportation to the Pawling house. From there, either Tim, or Tim and Mike by turns, drove to Krohn's bean fields. In any event, on the day of the accident, Tim drove, with Mike, Mike's sister, and the three Pawling girls in the car. On the return trip from Krohn's farm, while traveling on a gravel road, the accident occurred. It occurred at a culvert with cement walls that, in effect, formed a cement bridge. This bridge was narrower than the gravel road leading up to the bridge. The car hit the cement side and ended up in a ditch.

None of the survivors of the accident remember anything about the accident itself. Debbie Luther, the sister of the decedent, testified in a deposition that at some time prior to the accident, the car swerved to the shoulder of the road. Debbie then noticed that according to the speedometer the car was traveling at 60 miles per hour. At another point later, Debbie saw Tim, the driver, reaching with one hand under the seat for a missing cupcake. Debbie testified that she saw Tim act in this manner for several seconds, but she did not know if Tim kept his eyes on the road. Debbie did not remember how much time elapsed between Tim's reaching down for the cupcake and the accident. Debbie remembers nothing of the accident itself.

The issue arises in this case from the sustaining of the defendants' motion for a summary judgment. It is incumbent upon the defendants to demonstrate from the record that there was no genuine issue as to any material fact, and that under the applicable law they were entitled to judgment in their favor. Berg v. Rasmuss, 176 Neb. 340, 125 N.W.2d 905; Eden v. Klaas, 165 Neb. 323, 85 N.W.2d 643.

First, the plaintiff contends that there is a genuine issue of fact as to the decedent's status as a "guest" within the meaning of the guest statute, section 39-6,191, R.R.S.1943. For our purposes, this statute requires that in order for a guest in a motor vehicle to recover against his host for injuries suffered in a motor vehicle accident, he must prove that the host was grossly negligent.

The law in this state concerning what is a "guest" is clear. The burden is on the plaintiff to prove that he is not a guest. See Lincoln v. Knudsen, 163 Neb. 390, 79 N.W.2d 716. In determining that an occupant of an automobile was a guest, the court in Carter v. Chicago, B. & Q.R.R. Co., 170 Neb. 438, 103 N.W.2d 152, said: " 'The question of whether a person riding in a motor vehicle is a guest, or engaged in a joint enterprise, or other relationship, is generally one for determination in the individual case. It must be ascertained from facts establishing the identity of the persons advantaged by the carriage, the relationship between the parties, and the purposes to which the transportation is incident.' * * * '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.' * * * 'A benefit to the owner or operator of a motor vehicle sufficient to remove an occupant riding in it from the provisions of the guest statute must be a tangible and substantial one and a motivating influence for his furnishing the transportation.' "

In a very recent case, Zoimen v. Landsman, 192 Neb. 561, 223 N.W.2d 49, where the evidence showed that on three occasions the plaintiff gave the defendant $2 in connection with picking him up at the airport after his weekend trips to Chicago, this court stated the rule more particularly applicable to the facts in this case as follows: " 'A benefit removing an occupant riding in the motor vehicle of another from the provisions of the guest statute must be a tangible and substantial one to the owner and a motivating influence for his furnishing the transportation. A remote, vague, incidental, or speculative benefit is not sufficient to have that effect. This is the basis of the rule that the sharing of the cost of operating the car or other...