McGrath v. Nugent

• Decision Date: 16 July 1937
• Docket Number: 30023.
• Parties: MCGRATH v. NUGENT.
• Court: Nebraska Supreme Court

274 N.W. 549

133 Neb. 237

MCGRATH v. NUGENT.

No. 30023.

Supreme Court of Nebraska.

July 16, 1937

Syllabus by the Court.

It is error for trial court to fail to instruct on issue of contributory negligence when raised by the pleadings and supported by the evidence.

Appeal from District Court, Douglas County; Sears, Judge.

Suit by Harry McGrath against Gladys Nugent. Judgment for plaintiff and defendant appeals.

Reversed and remanded.

Dressler & Neely, of Omaha, for appellant.

John A. McKenzie and Edward J. Dugan, both of Omaha, for appellee.

Heard before ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and RINE, District Judge.

PAINE Justice.

This is a suit for damages for personal injuries suffered by the plaintiff as the result of an automobile accident while he was riding as a guest in the defendant's car. The jury returned a verdict for $2,000, upon which the court entered a judgment. Motion for new trial was overruled, and defendant appeals.

This suit grows out of the same accident as the case of Breen v. Nugent (Neb.) 274 N.W. 379; the plaintiff in the case at bar was riding in the back seat as a guest at the time of the accident. The full details of the trip and the accident are all set out in the other opinion, and will not be repeated here. The evidence in that case, which was tried first in the district court, did not disclose that intoxicating liquor was an element in the case.

The evidence in the case at bar disclosed at once that the use of intoxicating liquor by some of the occupants of the car was an important issue in the case.

Of the 7 instructions given to the jury by the trial judge, the second and third instructions mentioned the use of liquor and of the 13 instructions offered by the defendant and refused by the court, all except the first three pre sented the law on the various phases of the use of intoxicating liquor by the owner and guests of an automobile involved in an accident. Of the 18 errors relied upon for reversal of the judgment in the case at bar, the first 2 set out the refusal of the trial court to direct a verdict in favor of the defendant, and other 13 errors relate to instructions given on intoxicating liquors, as well as to those refused.

The evidence relating to use of intoxicating liquor disclosed that the owner of the automobile testified that she drank some of the liquor furnished by the plaintiff, and she said, " I felt my drinks," and asked another guest to drive her car on the return trip from Todd's lake. The accident occurred by the car being driven into the ditch some 18 miles from Omaha. She also testified that the plaintiff just before the accident, acted peculiar, talked, laughed, and threw his hands around from the effects of the liquor. Some of the witnesses, who lived near the scene of the accident and ran over there immediately, testified that the odor of liquor about the upset car was very strong, and that some of the parties in the car staggered when they got out and tried to walk. The mother of the plaintiff testified, from seeing the plaintiff and defendant after they were brought to Omaha, " It has been a drinking party." This was amply supported by the testimony of several other witnesses.

Among the instructions offered by the defendant and refused by the court may be found these statements of law in reference to assumption of risk and contributory negligence:

" You are instructed that plaintiff admits that he purchased a quantity of whiskey and drank some on the trip in question. I charge you that if you find that such whiskey caused or contributed to the accident of which plaintiff complains plaintiff cannot recover."

" You are instructed that a person who voluntarily permits himself to be driven along a public highway in an automobile operated by a person who has been drinking intoxicating liquor and is in an intoxicated condition does not exercise ordinary care for his own safety and he assumes the dangers incident to such driving when he voluntarily continues to ride in a car which is managed and controlled by an intoxicated or unfit driver."

" If you find from the evidence that the plaintiff drank intoxicating liquor while riding in defendant's automobile and that the defendant and the woman driving the defendant's car at the time of the accident also drank intoxicating liquor furnished by the plaintiff, you are instructed that the plaintiff would be guilty of more than slight negligence as a matter of law and would not be entitled to recover any damages for whatever injuries he received in the automobile accident and it would be your duty to return a verdict in favor of the

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