Pavlicek v. Cacak

• Decision Date: 07 March 1952
• Docket Number: No. 33090,33090
• Citation: 52 N.W.2d 310,155 Neb. 454
• Parties: PAVLICEK v. CACAK et al.
• Court: Nebraska Supreme Court

Page 310

52 N.W.2d 310

155 Neb. 454

PAVLICEK v. CACAK et al.

No. 33090.

Supreme Court of Nebraska.

March 7, 1952.

Syllabus by the Court.

1. If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against when made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.

2. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

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

4. In an action for gross negligence under the automobile guest statute (section 39-740, R.S.1943), where there is adequate proof of negligence, a verdict should be directed for defendant only where the court can clearly say that it fails to approach the level of negligence in a very high degree under the circumstances. In all other cases, it must be left to the jury to determine whether it amounts to gross negligence or to mere ordinary negligence.

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

Neighbors & Danielson, Scottsbluff, for appellant.

Atkins, Lyman & Ferguson, Scottsbluff, Hans J. Holtorf, Gering, Kirkpatrick & Dougherty, York, for appellees.

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

WENKE, Justice.

Mary W. Pavlicek, as administratrix of the estate of John L. Pavlicek, deceased, brought this action in the district court for Scotts Bluff County against Stanley J. Cacak and James E. Holmes. The purpose of the action is to recover damages arising from the wrongful death of John L. Pavlicek. The basis for the recovery is that John L. Pavlicek's death was caused by an automobile collision between defendants' cars which collision plaintiff alleges was caused by the concurrent negligent conduct of both. Plaintiff recovered a verdict for $10,353.10 against both defendants. Thereafter defendant Cacak filed a motion for judgment notwithstanding the verdict or for a new trial. This alternative motion was overruled and judgment was entered on the verdict. Thereupon defendant Cacak appealed.

John L. Pavlicek was at the time of the accident riding as a guest in the car of appellant. In view thereof the burden was on appellee, in order to recover, to establish, by a preponderance of the evidence, that appellant was guilty of gross negligence in the driving of his car. It was not enough for her to establish that appellant, in operating his car, may have been guilty of ordinary negligence. Appellant's liability was submitted to the jury on the basis of whether or not he was guilty of gross negligence. The only question appellant raises by his appeal is, does the evidence adduced at the trial establish a factual situation which will sustain the jury's finding that he was guilty of gross negligence?

It should here be stated that appellant made proper motions for a directed verdict at the close of appellee's evidence and again at the close of all the evidence, which motions the trial court overruled.

The principles here applicable have been stated by this court as follows:

'If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for directed verdict.' Hamilton v. Omaha & C. B. St. Ry. Co., 152 Neb. 328, 41 N.W.2d 139, 141.

'In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Smith v. Platte Valley Public Power and Irrigation Dist., 151 Neb. 49, 36 N.W.2d 478, 480.

'Gross negligence, within the meaning of section 39-1129, Comp.St.Supp.1941 (now section 39-740, R.S. 1943), means negligence in a very high degree, or the absence of even slight care in the performance of a duty.' Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 83, 149 A.L.R. 1041.

'In an action for gross negligence under the automobile guest statute (Comp. St.Supp. 1939, § 39-1129), where there is adequate proof of negligence, a verdict should be directed for defendant only where the court can clearly say that it fails to approach the level of negligence in a very high degree under...