dissenting:
I cannot agree to reverse this judgment. It is true the trier of the facts determines negligence vel non. It is also basically true that the court must determine the legal effect of the facts.
Negligence essentially is a failure to use lawful care. Lawful care when applied to simple negligence is a failure to use reasonable care, i. e., that degree of care and caution which a reasonable, prudent person would use under similar conditions. It necessarily must follow then that gross negligence occurs when the accused fails or neglects to use slight care.
It is therefore my conclusion that the court below was correct.