Morris v. Erskine

• Decision Date: 21 April 1933
• Docket Number: 28521
• Citation: 248 N.W. 96,124 Neb. 754
• Parties: JOHN MORRIS, APPELLEE, v. OLIVER D. ERSKINE, APPELLANT
• Court: Nebraska Supreme Court

248 N.W. 96

124 Neb. 754

JOHN MORRIS, APPELLEE, v. OLIVER D. ERSKINE, APPELLANT

No. 28521

Supreme Court of Nebraska

April 21, 1933

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Gross negligence, within the meaning of section 39-1129 Comp. St. Supp. 1931, means negligence in a very high degree, or the absence of even slight care in the performance of a duty.

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

3. The question of gross negligence is for the jury, where the evidence relating thereto is conflicting and from which reasonable minds might draw different conclusions.

4. Harmless error is not ground for the reversal of a judgment.

Appeal from District Court, Lancaster County; Broady, Judge.

Action by John Morris against Oliver D. Erskine. Judgment for plaintiff, and defendant appeals.

Affirmed.

Chambers & Holland, for appellant.

Frederick J. Patz, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOOD, J.

This is a personal injury action in which plaintiff had judgment, and defendant has appealed.

The injuries of which plaintiff complains resulted from an automobile accident while riding as an invited guest in defendant's car.

The defendant contends that the evidence is insufficient to sustain the verdict, in that it does not warrant a finding that plaintiff's injuries were caused by gross negligence of the defendant.

In this case plaintiff's right to recover damages is limited by section 39-1129, Comp. St. Supp. 1931, which, in so far as applicable to the present case, in effect provides that the operator of a motor vehicle shall not be liable for any damage to any person riding in said motor vehicle as a guest and not for hire, unless such damage is caused by the gross negligence of the operator. This is the first case presented in this court to which said section is applicable. A correct decision depends on the meaning of the term "gross negligence."

The term "gross negligence" has received the attention of many courts, with conflicting views as to its proper definition. The courts of some of the states appear to hold that, to constitute gross negligence, there must have been an intentional failure to perform a manifest duty, or the injury must have been inflicted intentionally, or in wanton disregard of the rights of others. Other courts have defined it less drastically.

We are of the opinion that in adopting the guest act the legislature used the term "gross negligence" as indicating a degree of negligence. Negligence may be slight, ordinary, or gross. Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It may be said that it indicates the absence of even slight care in the performance of a duty, and such, we think, is the meaning intended by the legislature.

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. Where a question of fact has been submitted to a jury upon conflicting evidence, this court, ordinarily, will assume the truth of the evidence tending to sustain the finding of the jury. In...