Sheehy v. Abboud
| Decision Date | 30 March 1934 |
| Docket Number | 28772 |
| Citation | 253 N.W. 683,126 Neb. 554 |
| Parties | JOHN SHEEHY, APPELLEE, v. CHRISTINA ABBOUD, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JOHN W. YEAGER JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In determining whether the evidence is sufficient for submission to the jury on the issue of gross negligence of a motorist in an action against him by a guest for personal injuries, the trial court should consider all evidential facts and circumstances surrounding the particular case, including evidence of speed which might amount to gross negligence in one case and fall far short thereof amid different surrounding and dissimilar circumstances in another.
2. In the motorists' guest law (Comp. St. Supp. 1931, § 39-1129), " gross negligence" indicates a degree of negligence greater than want of ordinary care or slight negligence; negligence of a very high degree and absence of even slight care in the performance of duty, but does not necessarily extend to wanton or wilful or intentional disregard for a guest's safety.
3. The degree of negligence comprehended by the comparative negligence statute is not ordinarily applicable in actions involving the motorists' guest statute (Comp. St. Supp 1931, § 39-1129).
4. Evidence examined and held sufficient to warrant the trial court in submitting the question of gross negligence to the jury.
Appeal from District Court, Douglas County; Yeager, Judge.
Action by John Sheehy against Christina Abboud. Judgment for plaintiff, and defendant appeals.
Affirmed.
Dressler & Neely, for appellant.
Rosewater, Mecham, Burton, Hasselquist & Chew and Rudolph Tesar, contra.
Heard before GOSS, C. J., ROSE and PAINE, JJ., and CHASE and ELDRED, District Judges.
This is an action brought by plaintiff to recover damages for injuries claimed to have resulted from an automobile accident. The trial resulted in a verdict for plaintiff, and from the action of the trial court rendering judgment thereon the defendant prosecutes an appeal to this court.
One of the questions urged for reversal is that the evidence is insufficient to support the verdict. To dispose of the contention we must determine whether there is sufficient evidence of gross negligence to justify the submission thereof to the jury.
It appears that the plaintiff was a guest riding in the automobile owned by defendant, but which, at the time, was operated by her brother. The driver of the car was a youth 16 years of age. The evidence discloses almost without dispute that the plaintiff was a guest riding with defendant's brother at the time of the accident; that the plaintiff for some time had been a friend of the driver's family and he lived near the home of the Abbouds. The accident occurred about 5:30 p. m. on July 13, 1932. The parties lived in the south part of the city of Omaha. Plaintiff got into the car for the purpose of riding home with the defendant's brother. They started home from the city about 5:30 p. m., and on their way proceeded south across the Sixteenth street viaduct, which is approximately three blocks in length. There was considerable traffic congestion that evening on the viaduct. In crossing the viaduct the driver passed a number of automobiles, and the plaintiff claims to have objected to his manner of operation and the rate of speed of the car. The witnesses for plaintiff testified that this car crossed the viaduct at a rate of speed from 45 to 55 miles an hour up to the time the accident occurred, while the defendant's witnesses say that it was about 35 miles an hour. It appears further that at the time the automobile arrived at a point near the south end of the viaduct, and a little more than 100 feet north of where Pierce street intersects Sixteenth street, the defendant's brother was driving at a high rate of speed only a short distance behind another automobile; that just a few feet before the head automobile arrived at the street intersection the driver of that automobile signaled by putting out his left hand, indicating that he was going to turn to the left down Pierce street. By this time the driver of the car in which plaintiff was riding was so close to the car in front that when the turn signal came he was unable to stop. Confronted by this situation he turned sharply to the left and passed in front of the car ahead, which was then heading toward the east. The driver states that after he had passed the turning car he headed directly toward a telephone pole on the south side of Pierce street; that he gave his car a sharp turn to the right to avoid hitting the pole, lost control thereof, which caused it to "wobble," as the witnesses state, and it jammed into the curb at the corner of the street, striking the iron grating at the intake of the storm sewer, overturning the car and injuring plaintiff. About the only dispute as to the material facts is the rate of speed the car was traveling at the time of the accident.
If the plaintiff is entitled to recover at all, it must be on evidence required by section 39-1129, Comp. St. Supp. 1931, which provides, so far as material to our consideration, 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." It therefore becomes necessary to determine what is meant by the term "gross negligence" as it appears in this statute. In construing the guest law this court recently held:
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