recklessness puts wrongdoer in same class with willful wrongdoer; recklessness amounting to utter disregard of consequences supplies specific intent
How later courts described this case
- recklessness puts wrongdoer in same class with willful wrongdoer; recklessness amounting to utter disregard of consequences supplies specific intent
- arising under a Nebraska Guest Statute
- Nebraska guest statute requiring gross negligence or intoxication applied in case between Kansas residents
Written by the judges who cited it.
The opinion
Harvey, J.
(concurring specially): I concur in the judgment of affirmance. The principal question to be^ determined by this appeal is whether contributory negligence is a defense in an action for personal injuries to a guest in a motor vehicle under the Nebraska statute limiting the liability of the owner or operator of such vehicle to that arising from his gross negligence. Prior to the passage of the statute (C. S. Neb. 1931 Supp. 39-1129), quoted in the opinion, the Nebraska courts did not recognize degrees of negligence, nor comparative negligence, and what we call contributory negligence was a defense in all actions for damages on account of negligence. In Village of Culbertson v. Holliday, 50 Neb. 229 , 69 N. W. 853 , it was held:
“The doctrine of comparative negligence is not in force in this state. Our courts recognize no degrees of negligence. The rule is that if a person himself, in the exercise of ordinary care, is injured through the negligence of another, he may recover; but if his own negligence contributed to or was the proximate cause of the injury he cannot recover.” (Syl. ¶ 8.)
When degrees of negligence are considered, three are recognized: *135 slight negligence, ordinary negligence, and gross negligence. All of these were treated as negligence under the meaning of that term as used in the case above cited. The statute above referred to used the term “gross negligence” as a degree of negligence (Morris v. Erskine, 124 Neb. 754, 755 , 248 N. W. 96 ). In doing so it necessarily relieved the owner or operator of a motor vehicle from liability to his guest for injuries resulting from his slight or ordinary negligence. It does not purport to take away from him the defense of contributory negligence which he had to all actions for negligence before the statute was enacted. The obvious purpose of the statute was ta relieve him from certain liability, not to remove defenses then available to him. The result necessarily is that what we speak of as contributory negligence remained as a defense in an action for gross negligence under the statute.
Another reason for affirmance is that the facts found by the jury in answer to the special questions in this case do not show gross negligence of defendant as distinct from ordinary negligence (compare Gilbert v. Bryant, 251 N. W. 823 [Neb.]). The statute in question relieved the operator of the motor vehicle from liability for ordinary negligence, hence, there was no liability.