Covey v. Anderson

Goss, C. J. This is a suit for damages for personal injuries received in an automobile accident. At the close of evidence on behalf of plaintiff, the court instructed a verdict for defendant. On overruling the motion for a new trial, the court dismissed plaintiff’s action, and plaintiff appealed. In support of a petition which stated a cause of action,, the evidence shows the following. On November 11, 1934,. after dark, plaintiff was riding as a guest with defendant in his car on their return from Gering to Mitchell. As the car, driven north by defendant, approached a culvert over a lateral irrigation ditch, a car, with very strong headlights or a bright spotlight, coming south, blinded plaintiff so that she could not see the road. She asked defendant if he could see and asked him not to drive so fast, but he paid no' attention. He drove the car into the concrete on the right [703] side of the culvert and plaintiff was injured and became unconscious. The road across the culvert was wide enough for two cars to pass. About two weeks before the trial defendant told plaintiff that he had stopped and put his lights out, but when he saw a car approaching from the rear he had started up without putting on his lights and consequently hit the guard or cement projection of the culvert. There were injuries to plaintiff sufficient to support a judgment if defendant were found liable: The petition charges, among other things, that defendant was grossly negligent in proceeding along the highway with his lights turned off and in failing to keep a proper lookout ahead. “If there be any testimony before the jury by which a finding in favor of the party on whom rests the burden of proof can be upheld, the court is not at liberty to disregard it and direct a verdict against him. In reviewing such action, this court will regard as conclusively established every fact which the evidence proves or tends to establish, and if, from the entire evidence thus .construed, different minds might reasonably draw different conclusions, it will be deemed error on the part of the trial court to have directed ■a verdict thereon.” Bainter v. Appel, 124 Neb. 40, 245 N. W. 16, and cases cited. Plaintiff, being a guest of defendant, must show that her damage was caused by the gross negligence of defendant. Comp. St. Supp. 1935, sec. 39-1129. The term “gross negligence” in this guest statute has been defined to mean negligence in a very high degree, or the absence of even slight ■care in the performance of a duty. The existence of gross negligence must be determined from the facts and circumstances of each case. Where reasonable minds might draw different conclusions from the evidence, the question of gross negligence is for the jury. Morris v. Erskine, 124 Neb. 754, 248 N. W. 96. See, also, Gilbert v. Bryant, 125 Neb. 731, 251 N. W. 823; Swengil v. Martin, 125 Neb. 745, 252 N. W. 207; Sheehy v. Abboud, 126 Neb. 554, 253 N. W. 683; Hotuard v. Gerjevic, 128 Neb. 795, 260 N. W. 273. [704] We think there was sufficient evidence to go to the jury and that it was prejudicially erroneous for the court to-direct the jury to return a verdict for defendant. The judgment of the district court is reversed and the cause is remanded for further proceedings. Reversed. Paine, J., dissents.