Munsell v. Gardner

Paine, J. This is an action for personal injuries, brought by a guest against the driver of an automobile and her husband, who was the owner thereof. The action was begun in the municipal court of the city of Lincoln. The jury returned a verdict for $200 in the district court, and defendants appeal. The evidence discloses that the defendants now live on a farm near Stanton, Nebraska, but at the time of the accident lived in Lincoln. Mrs. Ruby Gardner was then the president of' the S. O. S. (Send Out Sunshine) Club, of Lincoln, of about 12 members, whose only purpose was to — 215 — go out and cheer up people who were sick and helpless, and their work was largely with children who were in such condition. They would go out one afternoon in every two weeks and conduct a religious service, reading the Scripture and singing, and then share a lunch, which they would take along, with the shut-ins. On this afternoon, October 6, 1937, they were going out on such a mission, and all of the ladies in the car were members of this Send Out Sunshine Club except the plaintiff, Mrs. Pearl Munsell, who. was invited to go along as the guest of Mrs. Bessie Mehlig, one of the members. The automobile Mrs. Gardner, defendant, was driving was a 1931 Chevrolet four-door sedan, but her husband was a plumber and an excellent mechanic, and kept the car in good shape so far as it was mechanically concerned. Mrs. Gardner went around and picked up each of these ladies. Mrs. Ouderkirk was a cripple, and sat in the front seat. Mrs. Munsell was a guest, and she got in the back seat, and sat in the middle of that seat, and on the day in question they went out to a home in College View, and had a religious service for three crippled boys; then they had ice cream and cake, and started back for Lincoln. They went north on Fortieth street, which was unpaved, and were to turn west on Everett street. There is very little dispute about what happened. The defendant drove a little past the center of this intersection, at a speed of 20 to 30 miles an hour, as all testify except one deaf lady, who testified that the speed was 30 to 35 miles an hour, saying it was about 5 o’clock in the afternoon and they were all housewives and anxious to get home; that they were not going so very slowly, not extra fast. However, they were all talking, and the driver had run a very few feet too far to make the turn properly, and then attempted it rather suddenly, without putting on the brake. Fortieth street is a rather narrow dirt road, being an old section-line road. Everett street does not go east of Fortieth street, and is only 24 feet wide, and paved. There was a round, metal stop-box, connected with the water sys — 216 — tem, which projected up five or six inches in height six feet inside of the curb on the north side of Everett street, and there was also a stump of a tree there with some sprouts on it, and west of this, about 70 feet from the center of Fortieth street, was a tree about five or six feet north of the curb line. The driver swung to the left to make this turn, and they went straight west into the tree. It was claimed that, in striking some object, a cut or blow-out of the right rear tire occurred in which “you could stick two fingers,” and this sudden deflation of that tire tended to assist in throwing the car out of the driver’s control. The plaintiff’s counsel argues that the defendant, Mrs. Gardner, who was driving the car, testified that she did not remove her foot from the gas feed, that she did not slow down. She said: “All I know is that I lost control of the car and I got so I could not hold the car in the track.” Plaintiff’s counsel insists that, when the driver of a car continues to pump gas into it. and attempts to make a turn without applying the brake and the car runs wild, it is certainly gross negligence. He insists that, if she had taken her' foot off the feed and had put it on the brake, it might have been different, and the accident would not have happened. As assignments of error, the defendants, charged that the court erred in overruling defendants’ motion for a directed verdict in their favor, made at the close of the plaintiff’s evidence and again at the close of all the evidence in the case; that the court erred in refusing- to grant a new trial, and urge that the verdict and judgment are not sustained by the evidence, and insist that the evidence does not sustain a finding of “gross negligence” on the part of defendant driver, Mrs. Ruby Gardner. The applicable section of the statute reads as follows: “The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver of said motor vehicle being under the influence of intoxicating liquor or — 217 — because of the gross negligence of the owner or operator in the operation of such motor vehicle. For the purpose of this section, the term ‘guest’ is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefor.” Comp. St. Supp. 1937, sec. 39-1129. We have set out the facts in the case to show the mission the parties were engaged in, and that intoxicating liquor was not connected with this case, as it is with many cases of gross negligence. As the only question in issue in the case at bar is whether the acts of the driver of the car constituted gross negligence, we may glance at some of the recent definitions of that term. Mere failure of one to think of a possible result of his act, while possibly evidence of negligence, is not evidence of gross negligence, since it does not constitute or indicate conscious indifference. Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S. W. (2d) 830, 98 A. L. R. 262. “Gross negligence or wilful and wanton misconduct on the part of the driver of an automobile, so as to render him liable under a guest statute for injury to one riding with him as a guest, cannot be predicated upon the facts that he drove the car on a concrete pavement, knowing that one of the front tires was in a weakened condition by reason of being worn through the tread and part of the fabric lining, and that the injury was due to a ‘blow-out’ of the tire, resulting in loss of control of the car and a collision. * * * A guest in an automobile accepts the means of conveyance in the condition in which it is maintained by the owner, and cannot predicate an action for gross negligence or wanton and wilful misconduct under a guest statute, upon failure of the owner to inspect the car and keep it in such repair as to avoid the possibility of an accident.” 96 A. L. R. 1477 (Gifford v. Dice, 269 Mich. 293, 257 N. W. 830). “The question, what amounts to gross negligence for which a carrier will be liable to a free passenger, must be decided by the particular circumstances of each case, since — 218 — the law furnishes no adequate definition of the term ‘gross negligence’ beyond such generalities as that ‘gross negligence is the want of slight diligence’ and the like. Indeed, it has been said by the supreme court of the United States that ‘if the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.’ The New World v. King (1853) 16 How. (U. S.) 469, 14 L. Ed. 1019, 10 Am. Neg. Cas. 614.” 7 A. L. R. 852, Ann. “In a comparatively few cases it has been held that the host of a car that skidded might, under the particular circumstances, be chargeable with gross negligence, heedlessness, or recklessness, wilful and wanton misconduct, or some similar default toward a guest, amounting to more than mere negligence.” 113 A. L. R. 1044, Ann. See, also, Logan v. Reardon, 274 Mass. 83, 174 N. E. 264; Slobodnjak v. Coyne, 116 Conn. 545, 165 Atl. 681; Morris v. Erskine, 124 Neb. 754, 248 N. W. 96. “Gross negligence, within the meaning of a statute providing that the owner or operator of a motor vehicle shall not be liable to a guest except for gross or wilful negligence of the operator, is materially more want of care than constitutes simple inadvertence, is equivalent to the failure to exercise even a slight degree of care, and is a heedless and palpable violation of legal duty respecting the rights of others; but falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong.” Shaw v. Moore, 104 Vt. 529, 162 Atl. 373, 86 A. L. R. 1139. The Wisconsin court has further qualified the rule to include not only the assumption of the risk arising from the condition of the car and the skill of the driver, but also whatever risks arise from the ordinary habits of the driver. — 219 — Olson v. Hermansen, 196 Wis. 614, 220 N. W. 203 ; 12 Neb. Law Bulletin, 203. In Nebraska we have said the term “gross negligence” as used in the statute means “negligence in a very high degree, or the absence of even slight care in the performance of a duty” (Morris v. Erskine, 124 Neb. 754, 248 N. W. 96) ; and that the existence of gross negligence must be determined by the facts and circumstances in each case (Covey v. Anderson, 130 Neb. 702, 266 N. W. 595) ; and that, where reasonable minds might draw different conclusions from the evidence, the question of gross negligence is for the jury (Morris v. Erskine, supra). In 15 Neb. Law Bulletin, 318, many Nebraska cases are reviewed and discussed helpfully. In an increasing number of decisions, this court has held that the driver of an automobile should not suffer a judgment for gross negligence at the hands of his guest when the facts fail to warrant gross negligence. An administrator of the father’s estate secured a judgment against a daughter driving her car and losing control when a spike caused a blow-out, and the father was killed. The judgment was reversed. Kelly v. Gagnon, 121 Neb. 113, 236 N. W. 160. In Belik v. Warsocki, 126 Neb. 560, 253 N. W. 689, defendant driver was going about 45 miles an hour on a paved road when another car forced it to turn onto a dirt shoulder, and in attempting to return to the road slipped into the ditch. It was held that it was error for the trial court to overrule the defendant’s motion for an instructed verdict. In Thurston v. Carrigan, 127 Neb. 625, 256 N. W. 39, the driver was taking a load of high school students on a' treasure hunt, going south on Tenth street in Omaha at 50 miles an hour, in violation of city ordinances. The driver did not observe a sharp drop-off on rough pavement, and caught the automobile on the street car track, tipping it over, injuring guest in the rumble seat. Judge Redick directed verdict for defendant, which was sustained. — 220 — This court held that driving a car at 40 to 60 miles an hour over a railroad crossing known to be bad, and immediately after a warning to that effect, was not gross negligence under all the circumstances, and a judgment was reversed and the action dismissed. Gosnell v. Montgomery, 133 Neb. 871, 277 N. W. 429. In Black v. Neill, 134 Neb. 764, 279 N. W. 471, a sudden stop to avoid hitting a police car threw plaintiff into the windshield, but the driver was held to be free of gross negligence. In Clarke v. Weatherly, 131 Neb. 816, 270 N. W. 316, the driver drove on the Omaha municipal airport field at about 20 to 25 miles an hour at night, and made a rather sudden turn and ran into a fire hydrant not disclosed by his lights. A directed verdict for defendant driver was sustained as against his guest. This court said: “It is to be remembered that, in passing on the question of gross negligence, it is the province of this court to take a series of facts and circumstances, conceded or proved, and to declare what are the rights of the parties arising out of them. * * * Applying this principle to the facts disclosed by the present record, we are unanimously of the opinion that gross negligence was not proved, and the action of the trial court in directing a verdict for defendant was, in all respects, correct.” We will now briefly summarize the evidence of the defendant, Mrs. Ruby Gardner, who was driving the car in the case at bar. She testified that she came up Fortieth street at 25 or 30 miles an hour, and she made the turn in the center of the intersection, on the north side of Everett street; that she was then going about 20 miles an hour; that she had slowed down to make the turn, not by putting on the brake, but by lifting her foot off the gas, but not entirely off, still giving a little gas. She said the car went over the parking and landed up against a tree; that she had lost control of it. Two witnesses testify that she did not slow down. The plaintiff testified on cross-examination that, at the very next meeting of the Send Out Sunshine Club, just — 221 — two weeks after the date of the accident, she again went to the meeting as the guest passenger of the same driver, and sat in the middle of the back seat, as before. “Gross negligence, within the meaning of section 39-1129, Comp. St. Supp. 1933, means negligence in a very high degree, or the absence of even slight care in the performance of a duty.” Heesacker v. Bosted, 131 Neb. 42, 267 N. W. 177. It is the duty of the trial court to direct a verdict for the defendant under the Nebraska automobile guest law (Comp. St. Supp. 1937, sec. 39-1129), when there is not sufficient proof of either gross negligence or intoxication on the part of the driver of the car. In our opinion, the facts do not warrant a finding of gross negligence under the guest law of Nebraska (Comp. St. Supp. 1937, sec. 39-1129), and the trial court should have directed a verdict for the defendants. Judgment reversed and the action dismissed. Reversed and dismissed.