Werner v. Grabenstein

• Decision Date: 11 October 1957
• Docket Number: No. 34215,34215
• Citation: 85 N.W.2d 297,165 Neb. 231
• Parties: Charles WERNER, by and through his sister and next friend, Delores Lee Brown, Appellee, v. Walter GRABENSTEIN, Appellant.
• Court: Nebraska Supreme Court

Page 297

85 N.W.2d 297

165 Neb. 231

Charles WERNER, by and through his sister and next friend, Delores Lee Brown, Appellee, v. Walter GRABENSTEIN, Appellant.

No. 34215.

Supreme Court of Nebraska.

Oct. 11, 1957.

Syllabus by the Court.

1. An issue concerning gross negligence must be decided from the facts of each case.

2. An issue of gross negligence is for the jury if the evidence relating thereto is conflicting and from which reasonable minds might arrive at different conclusions.

3. When the evidence is resolved most favorably to the existence of gross negligence and thus the facts are determined, the inquiry of whether they support a finding of gross negligence is one of law.

4. A guest, to recover damages from a host for injury received by the guest while riding in a motor vehicle operated by the host, must prove by the greater weight of the evidence in the case the gross negligence of the host relied upon and that it was the proximate cause of the accident and injury.

5. Gross negligence within the meaning of the motor vehicle guest statute means great and excessive negligence or negligence in a very high degree. It indicates the absence of slight care in the performance of duty.

6. A finding of gross negligence is justified if there is evidence of imminence of danger which was apparent to or known by the operator of an automobile and he was timely cautioned by the guest concerning the manner of his operation of the automobile but he persisted in his negligent operation thereof and if there is evidence that the operator was heedless of the consequences which might ensue by his negligent operation of the automobile consisting not only of rate of speed but of other conditions, known to the operator, which enhanced the peril.

Frank M. Johnson, Lexington, Healey, Davies, Wilson & Barlow, Lincoln, for appellant.

Stewart & Stewart, Lexington, for appellee.

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

BOSLAUGH, Justice.

This appeal is from a judgment in favor of appellee and against appellant for damages resulting from injuries sustained by appellee while a guest in a pick-up truck owned by appellant while it was being operated by his son Gary Grabenstein under conditions which rendered appellant responsible for the actions and omissions of his son. A motion for a directed verdict was made at the conclusion of the evidence by appellant because, as he asserted therein, the evidence was not sufficient to sustain a finding that Gary Grabenstein, hereafter referred to as Gary, was guilty of gross negligence in the operation of the motor vehicle involved at the time of the accident. The motion was denied and the issue of gross negligence was submitted to the jury. It found for appellee. Appellant moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was overruled and judgment was rendered on the verdict. The validity of the judgment is the subject of this appeal and the sole contention made in this court is that the evidence is insufficient to sustain a finding adverse to appellant on the issue of gross negligence.

The accident involved occurred late in the afternoon of July 1, 1953. Appellee was 14 and Gary was 15 years of age. They and all the persons concerned in the happenings which resulted in this litigation were and have continued to be neighbors, friends, and intimates except the father of appellee who died after the accident. LaVonne Grabenstein, mentioned herein as LaVonne, was a younger sister of Gary. Appellee and Gary were and have continued to be very close friends. In the vernacular, they were 'pals.'

Appellee, Gary, and LaVonne were at the time of the accident riding in a G.M.C. three-quarter ton, 1950 model pick-up truck owned by appellant and maintained in such circumstances as to be subject to the family car doctrine at the time important to this case. It was equipped with snow or mud tires which are sometimes in the record spoken of as 'knobby' tires. The truck was in good and usable condition. It could be operated on a highway at a speed of 45 miles per hour without difficulty but at this speed the motor turned over very rapidly because of the ratio of the gears. It was geared for power and not for speed. It was almost impossible for the truck to operate at 60 miles per hour. This was done only once to the knowledge of its owner and that was on U. S. Highway No. 30, a hard-surfaced road.

The truck was not carrying a load. Gary was seated in the truck to the left and operated it. LaVonne was to his right, and appellee was on the extreme right of the seat of the truck. They traveled north on a county graveled road, the graded portion of which was about 25 feet in width and the traveled part of it was about 20 feet. There was some loose gravel on the traveled portion and there was a ridge of gravel along each side of the road near the outside edge of the graded portion. It was a clear, hot, and dry summer day. The vehicle in which the persons were riding was the only one on the highway which they were using immediately before and at the time of the accident. The condition of the road was described as rough because it had alternating small valleys and elevations on its surface, giving it the effect of a washboard surface referred to in the record as 'washboardy.' The road, as it extended north from where the truck entered it for the trip which ended in the accident, for a distance of about one-half mile, crossed a bridge and creek, went over or along a slough, and had several quite sharp S curves in it. The truck was operated over this part of the road at a speed of from 40 to 45 miles per hour. Thereafter for a distance of about, but probably somewhat less than, one-half mile the road extended straight north to an intersection with an east-and-west county road. When the truck entered this part of the road it was traveling about 40 to 45 miles per hour and the rate of speed was increased so that in approximately one-fourth of a mile a speed of 65 miles per hour had been attained. At that time the truck was 300 or 400 yards from the intersection mentioned above and it was swerving from one side to the other in the road. Gary then said the speed of the truck was 65 miles per hour and appellee verified the correctness of this statement by glancing at the speedometer. Appellee was frightened because of the speed, the condition of the road, and the action of the vehicle. He protested by saying to Gary that he had better slow down because he was going too fast. Gary did not heed the protest of appellee and LaVonne said to Gary that he should slow down or she would tell Dad and he would be mad. The speed of the truck was not decreased and it continued to go from one side of the road to the other. Appellee said a second time to Gary that he should slow down but Gary made no effort to decrease the speed of the truck. Immediately after the last protest or warning of appellee to Gary the truck struck the right or east ridge of gravel along the road. The truck then moved to the west and struck the ridge of gravel on the left of the road, and then returned to the right side of the road. The truck was then swaying, bouncing around, and zigzagging on the road. It was then that appellee lost consciousness or, as he stated, 'blacked out.' His next remembrance was that he was sitting on the ground east of the road about 20 feet in an alfalfa field. He was seriously injured.

Gary testified that due to the 'washboardy' condition of the road the truck swerved and bounced. It was empty and, to make it worse, it had 'knobby' tires. It started sliding, hit the right side of the road first, swerved to the left side of the road, and then back across the road. By that time he did not have any control over the truck and it went into the ditch. The truck went off the road to the east and came to rest on its side.

It was 254 feet from skid marks on the left or west side of the road to where it went off the road on the east side. There was evidence that while making the trip from the place of the accident to the hospital Gary said repeatedly that he would never drive again and LaVonne said that Gary should not have done it and that he was driving too fast. LaVonne said at the place of the accident that she had told Gary not to drive so fast and that she would tell his Dad. Gary lived within a half-mile of the north-south road on which the accident happened, was familiar with it, and knew its condition. He knew it was rough or, as he said, 'washboardy,' that there was loose gravel on it, and that there was excess gravel along both sides of the road. He knew that when a pick-up truck is not loaded it is hard to control in the road and especially so when the surface of the road is rough.

The circumstances of the cause require that in considering and deciding the issue of gross negligence the evidence relating to it be viewed most...