Sterns v. Hellerich
| Decision Date | 24 January 1936 |
| Docket Number | 29491 |
| Citation | 264 N.W. 677,130 Neb. 251 |
| Parties | ERMA MAE STERNS, APPELLEE, v. ADOLPH HELLERICH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saunders county: HARRY D. LANDIS JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Owner of family-purpose automobile may be liable for personal injury to guest riding therein, resulting from gross negligence of owner's son in operation of the automobile.
2. Whether the driver of an automobile is guilty of gross negligence, who, after warning of a dangerous place in the road, continues to drive, at night, down a long, steep hill on a curving road at the rate of 50 miles an hour, with the automobile weaving from side to side, and who fails to decrease the speed, and runs off a bridge at the foot of the hill and injures a guest, presents a question for the jury.
3. The term " gross negligence," as used in the automobile guest statute, signifies a degree of negligence greater than want of ordinary care or slight negligence, but not necessarily extending to wanton, wilful or intentional disregard for the guest's safety. Gilbert v. Bryant, 125 Neb. 731, 251 N.W. 823.
4. " The existence of gross negligence must be determined from the facts and circumstances in each case." Morris v. Erskine, 124 Neb. 754, 248 N.W. 96.
5. It is proper practice for court to refuse to submit to jury defense not supported by evidence.
6. An intelligent person, who has driven an automobile and has observed the speedometer and the rate of speed at which a car is traveling, is competent to testify as to his opinion of the speed of the car in which he is riding.
Appeal from District Court, Saunders County; Landis, Judge.
Action by Erma Mae Sterns, a minor, by her father and next friend, John Sterns, against Adolph Hellerich. From a judgment for plaintiff, defendant appeals.
Affirmed.
Baylor & Tou Velle, George Healey and C. V. Dunnuck, for appellant.
Chambers & Holland and Clyde Worrall, contra.
Heard before GOOD, EBERLY and PAINE, JJ., and RAPER and PROUDFIT, District Judges.
Plaintiff recovered a judgment for personal injuries sustained while riding as a guest in defendant's automobile. Defendant has appealed.
About 8:30 o'clock p. m., November 24, 1933, defendant's son Adolph was using defendant's car to transport himself and four other young people to a "wiener roast." Plaintiff and another girl were in the front seat, Adolph on the left at the wheel, plaintiff next to him, and the other girl on the right-hand side. Two boys, or young men, were in the rear seat. The car ran off the left-hand side of a bridge, and Adolph and one of the boys in the rear of the car were killed. Plaintiff sustained crushed vertebrae and practically severance of the spinal cord at about the twelfth dorsal vertebra. She is paralyzed from her waist down and is a helpless invalid as long as she may live.
The road over which the young people were traveling was a dirt road that was dragged about once in every ten days or two weeks. Adolph had previously been over the road at least twice. Plaintiff had never been over the road before. The car was traveling west. East of the bridge where the accident occurred is a long, rather steep hill, extending from the bridge eastward 430 feet. The road down this hill curves first to the south and then back to the section line before reaching the bridge. Thus far the facts are not in dispute.
The evidence on behalf of plaintiff is that a very short distance before the crest of the hill was reached one of the boys in the rear seat of the car warned Adolph, the driver, that there was a bad place ahead in the road, and that Adolph responded that "we were in a hurry;" "that there were kids waiting." Plaintiff's evidence is that Adolph was driving the car at the rate of 50 miles an hour; that, notwithstanding the warning, he did not slacken the speed of the car going down the hill on the curving road, and that the car was weaving somewhat from side to side before it reached the bridge; that it plunged through the left-hand side of the bridge, with the result above indicated. The bridge was 16 feet wide and 55 feet long. The evidence shows that the car left the bridge 11 feet from the east and and shot through the air for a distance of about 47 feet, striking the opposite or west bank of the creek.
The evidence on behalf of defendant tends to show that no warning was given to Adolph of the bad place in the road, and that his speed was not more than 20 to 25 miles an hour as he descended the hill. However, the rate of speed and whether the warning was given were questions of fact for the jury. Since the jury found for plaintiff, we must assume that they believed the testimony on behalf of plaintiff, which they had a right to do, and the jury's finding upon these facts, if properly submitted for their consideration, is binding upon this court.
In this court defendant, for reversal, has assigned numerous alleged errors. The first four relate to the sufficiency of the evidence to sustain any recovery by plaintiff.
It is argued that defendant, while the owner of the car, was not the driver, and that it would be an extension of the family-purpose doctrine to permit a recovery in this case. It is admitted that the family-purpose doctrine has been declared applicable to cases where the driver of the car was guilty of simple negligence, but it is claimed that it has not been held to constitute the basis for liability on the part of the owner for the gross negligence of the driver. In this case it is stipulated that the car was owned by defendant, and that the use of the car on the evening in question was with the consent and permission of defendant.
Defendant cites and relies upon Hogg v. MacDonald, 128 Neb. 6 257 N.W. 274, and Ebers v. Whitmore, 122 Neb. 653, 241 N.W. 126. In the first of the cited cases the driver of the car was not a member of defendant's family and was not using the car by defendant's direction or for her benefit. In the second case cited an employee of defendant was given permission to use defendant's truck for a specific purpose, but abandoned that purpose and used the car for an entirely different one, and for which he had no permission. Clearly, these cases have no application...
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