O'Neill v. Henke

Decision Date16 January 1959
Docket NumberNo. 34458,34458
PartiesRobert O'NEILL, Appellant, v. Marion A. HENKE, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Under the provisions of section 39-740, R.R.S.1943, the liability of a driver while driving under the influence of intoxicating liquor is a distinct ground of liability from that of the driver of a motor vehicle based upon gross negligence in the operation of a motor vehicle.

2. Intoxicating liquor generally includes and means any liquor intended for use as a beverage, or capable of being so used, which contains alcohol no matter how obtained, in such a percent that it will produce some degree of intoxication when imbibed in a quantity that may practically be drunk.

3. The distinctive characteristic of all liquors is that they contain alcohol, the basis of all intoxicating drinks; that they are capable of being consumed as a beverage; and that when so used, they will produce intoxication to some extent in the usual and common acceptation of the term.

4. The term under the influence of intoxicating liquor means that a person is under the influence of alcoholic liquor if such person is under such influence of intoxicating liquor to such an extent as to have lost to an appreciable degree the normal control of his body or mental faculties, and to the extent that there is an impairment of the capacity to think and act correctly and efficiently.

5. Liability for damage caused by the driving of a motor vehicle while under the influence of intoxicating liquor is on a parity with liability for damage caused by gross negligence in the operation of a motor vehicle.

6. The driving of a motor vehicle by one under the influence of intoxicating liquor fully responds to all the elements necessary to constitute gross negligence under the provisions of section 39-740, R.R.S.1943.

7. Gross negligence, within the meaning of section 39-740, R.R.S.1943, means negligence in a very high degree, or the absence of even slight care in the performance of a duty.

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

9. 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.

10. It is not necessary in all cases that the operator of a motor vehicle be aware of impending danger in order to hold him guilty of gross negligence, but that is a circumstance which should be considered.

11. 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.

12. Excessive speed of a motor vehicle does not necessarily establish gross negligence, although it is a factor to be considered.

13. As a general rule it is negligence as a matter of law for a motorist to drive a motor vehicle on a highway in such a manner that he cannot stop in time to avoid a collision with an object within the range of his vision.

14. The basis of this rule is that a driver of a motor vehicle is legally obligated to keep such a lookout that he can see what is plainly visible before him and that he cannot relieve himself of that duty. And, in conjunction therewith, he must so drive his motor vehicle that when he sees the object he can stop his motor vehicle in time to avoid it.

15. Exceptions have been recognized to this general rule where the object or obstruction or depression is the same color as the roadway and for that reason, or for other sufficient reasons, cannot be observed by the exercise of ordinary care in time to avoid a collision.

16. When the view of the driver of a motor vehicle is obstructed, whether by reason of a grade or otherwise, the speed of the motor vehicle should be so reduced that the motor vehicle can be stopped within the distance the driver can see ahead.

17. Under the law of this state the lawfulness of the speed of a motor vehicle, within the limits fixed by law, is determined by the further test of whether the speed was greater than was reasonable and prudent under the conditions then existing.

18. What is a reasonable speed is necessarily largely dependent on the situation and the surrounding circumstances, it being obvious that a speed which would be safe, reasonable, and proper in some places and under some circumstances might be highly dangerous, unreasonable, and improper in other places and under other circumstances.

19. The driver of a motor vehicle on a public highway is required to operate it upon the right half of the highway unless it is impracticable to do so.

20. Evidence as to drinking intoxicants within a reasonable time prior to an accident is a circumstance to be considered in determining whether or not a driver of a motor vehicle is guilty of gross negligence.

21. The emergency rule cannot be successfully invoked by either party in a negligence case unless there is competent evidence to support a conclusion that a sudden emergency actually existed, and then it cannot be successfully invoked by one who has brought that emergency upon himself by his own acts or who has not used due care to avoid it.

22. A verdict should not be directed, or a cause of action dismissed, or a judgment entered notwithstanding the verdict, unless the court can definitely determine that the evidence of defendant's negligence, when taken as a whole, fails to reach such degree of negligence that is considered gross.

23. Where the evidence of negligence falls within the area where reasonable minds can differ as to whether or not it establishes gross negligence then the determination of that question is for the jury and, absent prejudicial error otherwise, the judgment of the jury must prevail.

Hugh Stuart and Smith Brothers, Lexington, for appellant.

John E. Dougherty, York, and Stewart, & Stewart, Lexington, for appellee.

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

SIMMONS, Chief Justice.

This is an action where plaintiff, a guest passenger, seeks to recover damages resulting from the collision of a motor vehicle, driven by defendant, with a truck on a highway. The right to recover is based on alleged gross negligence of the host driver under the civil liability provisions of section 39-740, R.R.S.1943. At the conclusion of all the evidence the trial court sustained a motion of the defendant to dismiss on the ground that the evidence would not sustain a finding of gross negligence.

Plaintiff appeals.

We reverse the judgment of the trial court and remand the cause.

The evidence is here stated under the established rule that such a motion admits the truth of all competent evidence favorable to the party against whom the motion is directed; that every controverted fact must be resolved in his favor; and that he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

The accident happened on the upgrade side of a hill and near the crest of a country road. The road was a graveled, improved highway, with a smooth surface, and with a width, normally suitable for travel, of 25 feet. However, at the time of the accident there was a windrow of gravel along the west side that reduced the available normal travel width of the road to 23 feet. We refer later herein to the position of the vehicles involved with reference to the 23-foot width of the road. See Krepcik v. Interstate Transit Lines, 154 Neb. 671, 48 N.W.2d 839.

The automobile in which plaintiff and defendant were riding was a passenger car. The truck involved is described as a 1-ton truck upon which a grain box had been mounted. The box was less than 8 feet wide.

At the point of the accident and for some distance prior thereto the road passed through a hilly pasture land area that was sparsely settled.

The road was dry and the weather was clear. The accident happened October 28, 1956, about 5:35 p. m. The sun was shining. There was no wind or other unfavorable atmospheric conditions.

Plaintiff and defendant had been friends and fellow employees for a number of years.

On Saturday evening defendant had attended a party at a club house outside the city of Lexington where he has consumed some intoxicating liquor. On Sunday about noon defendant and two other men had gone to the club house as the designated 'crew' to clean up after the party of the night before. During the middle of the day the three men consumed about three-fourths of a bottle of whiskey, described as either a fifth or a pint.

The three men started to return to Lexington. Defendant was driving. After 2 miles of the trip had elapsed, one of the other men took over the driving because of the condition of the defendant. They went to Lexington where about 4 p. m. defendant and the others had a full course steak dinner. After it defendant gave no appearance of intoxication. About 5 p. m. defendant drove to the home of the plaintiff and invited plaintiff to accompany him to Eddyville, a town north of Lexington. At that time defendant's eyes were 'glassy' but he appeared to be all right. Plaintiff and his wife agreed to go.

When plaintiff and his wife got in the car they smelled alcohol on the breath of defendant.

Defendant drove out of Lexington, obeying all stop signs, and for the first 7 or 8 miles of the trip in the country he drove at a reasonable rate of speed and so as to cause no concern. Defendant then began to increase his speed, driving at times from 70 to 80 miles per hour. At one time he drove across an irrigation lateral bridge that was elevated above the road and threw his passengers into the top of the car. He slipped around corners and curves at an excessive speed. At one time plaintiff asked defendant, 'What's the hurry?' Plaintiff at other times would...

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15 cases
  • Williamson v. McKenna
    • United States
    • Oregon Supreme Court
    • August 10, 1960
    ...the absence of even slight care in the performance of a duty. The Nebraska court has held fast to this definition, O'Neill v. Henke, 1959, 167 Neb. 631, 94 N.W.2d 322, but the Nebraska cases taken as a whole seem to indicate that the elements required in order for a case to go to the jury i......
  • Sleezer v. Lang
    • United States
    • Nebraska Supreme Court
    • April 8, 1960
    ...or not negligence is established thereby.' Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041. See, also, O'Neill v. Henke, 167 Neb. 631, 94 N.W.2d 322; Gleason v. Baack, 137 Neb. 272, 289 N.W. As stated in Barney v. Adcock, supra: 'The violation of a statute intended to assure t......
  • State v. Miller
    • United States
    • Nebraska Supreme Court
    • January 7, 1983
    ...among them operating a motor vehicle "while under the influence of alcoholic liquor." This phrase was defined in O'Neill v. Henke, 167 Neb. 631, 638, 94 N.W.2d 322, 329 (1959), as: " ' "[A] person is under the influence of alcoholic liquor if such person is under such influence of intoxicat......
  • Carter v. Chicago, B. & Q. R. R. Co.
    • United States
    • Nebraska Supreme Court
    • May 13, 1960
    ...or not negligence is established thereby.' Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 83, 149 A.L.R. 1041. See, also, O'Neill v. Henke, 167 Neb. 631, 94 N.W.2d 322; Gleason v. Baack, 137 Neb. 272, 289 N.W. 349. The same rule would apply to the operation of trains within the city limits i......
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