Thorpe v. Zwonechek

• Decision Date: 03 July 1964
• Docket Number: No. 35685,35685
• Parties: Dorothy THORPE, Appellee, v. John D. ZWONECHEK, Appellant.
• Court: Nebraska Supreme Court

Page 483

129 N.W.2d 483

177 Neb. 504

Dorothy THORPE, Appellee, v. John D. ZWONECHEK, Appellant.

No. 35685.

Supreme Court of Nebraska.

July 3, 1964.

Syllabus by the Court

1. An issue concerning gross negligence under our guest statute, section 39-740, R.R.S.1943, must be decided on the particular facts and circumstances of each case.

2. If the evidence is conflicting and reasonable minds could draw different conclusions, it is for the jury. But, when the evidence is resolved most favorably to the existence of gross negligence, and thus the facts are determined, the inquiry of whether or not they support a finding of gross negligence is one of law for the court.

3. If there is evidence of imminent danger apparent to the driver of an automobile, and if he is timely warned by the passenger but persists in negligent driving, heedless of the consequences of his negligent driving, ordinarily there is sufficient evidence to submit the case to a jury.

4. Instructions must be considered and construed together. A party cannot complain that a correct instruction is not sufficiently specific when no request is made for more explicit instructions.

5. Gross negligence does not necessarily extend to wanton or willful or intentional disregard for the guest's safety. It may arise from a series of acts or omissions, or both, none of which standing alone would constitute more than ordinary negligence.

6. An instruction which informs the jury of the nature of present worth, without fixing any rate of interest or rigid formula, and requires it to reduce future damages to their present worth, is proper. An example is not essential. A jury may be entrusted to apply its common sense and common knowledge to the actual ascertainment of present worth.

7. The nature and extent of voir dire examination rests in the discretion of the trial court. If a party makes no challenge for cause and accepts the jurors, ordinarily he waives any objection to their selection as jurors.

John E. Dougherty, York, for appellant.

Steinacher & Vosoba, Stanley Bartos, Wilber, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

WHITE, Chief Justice.

Plaintiff, a guest passenger, sues for personal injuries resulting from an automobile accident occurring when defendant lost control of his vehicle and crashed into a bridge abutment on a gravel county road about 3:30 a. m., on February 14, 1959. Trial was had to a jury resulting in a verdict for $25,000 from which the defendant appeals. The assignments of error are numerous and the ones discussed will be recited separately as they are reached in this opinion.

Substantially, the facts are not in dispute. The accident occurred at about 3:30 a. m., on February 14, 1959, in the valley bottom of two hills on a gravel road near De Witt, Nebraska. A maintainer had cleared recent snow from the road, and it was a clear night. The defendant Zwonechek's vehicle, driven by him, struck the corner of a bridge; and the plaintiff was thrown from the vehicle and sustained serious injuries and multiple fractures involving the pelvis and ribs.

The plaintiff and the defendant had been divorced for about 2 years at the time of the accident. Plaintiff was living in Iowa and, on defendant's invitation, came to the defendant's home at De Witt to settle a furniture dispute growing out of their divorce decree. At about 1 p. m., on the afternoon of February 13, 1959, they settled this dispute at the defendant's home, and the plaintiff was going to return to Lincoln enroute to her home in Winterset, Iowa. While at the defendant's home they each drank a small glass of wine, then traveled to Wilber where they each drank one highball and the defendant drank part of another one, and as they left the tavern the defendant bought a bottle of whiskey. They drove to Lincoln and the defendant took the plaintiff to a tavern where she had previously worked and to several other places where she visited friends. Except for a sip of a ten-cent beer at the tavern in Lincoln, neither of the parties drank anything during this period of time. They then went to the but depot but the plaintiff was unable to leave Lincoln as no buses were scheduled at this time of the evening. At the suggestion of the defendant, they went to a 'night club' west of Lincoln to kill time because a train was not immediately available. They arrived at the 'night club' about 11 p. m., ordered set-ups, opened the fifth of whiskey the defendant had purchased in Wilber, each had two highballs, danced quite a few times with each other, and defendant called the depot and inquired about train departures. They left the 'night club' about 1 a. m., went to an eating place where they had hamburgers and coffee, but nothing else to drink, and then drove to the train depot. It was about 2 a. m., when they arrived at the train depot, and plaintiff's train did not leave until about 10 a. m. Defendant prevailed upon the plaintiff to ride to De Witt with him so that he could restart his hydro-electric plant operation but promised to bring the plaintiff back to Lincoln in order to catch her train. At about 2:30 a. m., on February 14, 1959, the defendant drove south out of Lincoln on the paved highway and traveled generally at a speed of 55 miles per hour. Plaintiff testified that she noticed nothing unusual about the defendant's driving and that he was not under the influence of intoxicating liquor. The defendant turned off the paved highway and traveled west on a gravel road he called a 'short-cut.' Plaintiff watched the speedometer, and the defendant kept driving at 55 miles per hour, the same speed at which he drove on the paved highway. About a mile west after the defendant had turned off the paved highway, and while driving on the gravel road, defendant's vehicle suddenly lurched violently almost off the shoulder and cross-wise in the road. Plaintiff told the defendant to slow down, that the road was not in shape to drive on it at 55 miles per hour and that the road 'must have been icy.' After this lurch the defendant continued to drive at 55 miles per hour and didn't drive straight. Plaintiff told the defendant to stop if he were sleepy, but he still didn't decrease his speed. Plaintiff again told the defendant to slow down because the road was so bad. Defendant admits that he did not slow down after plaintiff's protests about the speed at which he was driving, that his reflexes may not have been what they should have been, that the road had thawed but was frozen at the time of the accident, that the plaintiff told him to stop if he were sleepy, and that he might have been sleepy. The accident happened at about 3:30 a. m., about 5 or 6 miles west of where the defendant turned off the highway, and as they approached a bridge in a valley between two hills. The defendant hit ruts east of the bridge, lost control of his car, and there was a violent lurch and a 'horrible crash' into the east bridge abutment. Plaintiff was thrown out of the car, was on her back in the road, heard steam fizzing, and thought she was going to die. She was confined to the hospital for about 2 months, suffered from severe shock, and was in critical condition due to numerous fractures and internal injuries. Plaintiff suffered continuing pain of the most severe type that limited treatment, and she returned to the hospital a year later for removal of bone encroaching on the bladder and vagina. In spite of several attempts, plaintiff is unable to work as a waitress, her usual occupation, and is now receiving state rehabilitation allotments.

Defendant told the sheriff at the time of the accident that he fell asleep. He further testified that because of the thawing during the day and the freezing at night there were ruts in the road and that driving was confined to the center of the gravel following the frozen tracks carved out during the thawing period. His exact testimony in this respect is as follows: 'Q All right. What, if anything, happened in that four mile period before the accident happened with reference--did it--was the car all over the road, or tell us what it was doing. A No, I said that I did make a little mistake here, I said that it was soft on the shoulder, but it wasn't, there were--it had, the road, it had thawed the day before, and the road was frozen in the evening, and, so, anybody that had driven anywhere except on the path right down the middle where everybody took it, except where they come to the top of hills, there was--they'd sunk in and there were some ruts and that's what I hit, what threw me off. * * * Q Now as you come--just tell us in your own words what happened, as you came up there to that bridge, if you remember the bridge, or whatever it is, just tell in your own words without any prompting from me. A Well, I'll admit that I was--that I was sleepy, and, as I say, I know that there were ruts east of the bridge and as I said before, these gravel roads they always take the center except when they come to the top of a hill, well this is the same sort of a deal, all of them drove in the center because you could see and on approaching the bridge from the east side, and somebody had driven while it was, the day before, when it had thawed somebody had driven on the side a little bit and made ruts, and that's what I hit. * * * Q I'm not asking you what you have done, I am asking if you remember of dozing off or anything like that this particular night? A Well, I don't remember dozing way off, but I must have been sleepy.' (Emphasis supplied.)

Defendant argues the insufficiency of the evidence under our previous decisions to sustain a finding of gross negligence. No contention is made in this case as to contributory negligence of the plaintiff. An issue concerning gross negligence under our guest statute, section 39-740, R.R.S.1943, must be decided on the particular facts and circumstances of each case. Sautter v. Poss, ...