dissenting.
In 1931, the legislature provided that the owner or operator of a motor vehicle should not be liable for damages to a guest unless the damage was caused by the gross negligence of the owner or operator. Comp. St. Supp. 1937, sec. 39-1129.
This legislature did not define gross negligence. This court in Morris v. Erskine, 124 Neb. 754, 248 N. W. 96, defined the term and outlined the function of courts and juries in the following language:
“We are of the opinion that in adopting the guest act the legislature used the term ‘gross negligence’ as indicating a degree of negligence. Negligence may be slight, ordinary, or gross. Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It may be said that it indicates the absence of even slight care in the performance of a duty, and such, we think, is the meaning intended by the legislature.
“What amounts to gross negligence in any given case *222must depend upon the facts and circumstances. What would amount to gross negligence under certain circumstances might, under different circumstances, be even slight negligence. Ordinarily, the question of negligence, whether slight or gross, is one of fact. If the evidence respecting it is in conflict and is such that ordinary minds might draw different conclusions therefrom, then a question of fact is presented for the jury to determine. Where a question of fact has been submitted to a jury upon conflicting evidence, this court, ordinarily, will assume the truth of the evidence tending to sustain the finding of the jury.”
This court has repeatedly affirmed that holding, and since that decision, the legislature has neither defined gross negligence, nor changed the degree of negligence required to establish liability of the host for injuries received by a guest. That judicial definition of the legislative term “gross negligence” should stand the law of this state until, such time as the legislature acts thereon.
In Morris v. Erskine, supra, this court stated that it would ordinarily assume the truth of the evidence tending to sustain the finding of the jury.
In Covey v. Anderson, 130 Neb. 702, 266 N. W. 595,, this court stated:
“ Tf 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.” (Italics ours.)
The facts established by the finding of the jury are: The defendant had driven the reverse trip earlier in the afternoon, and was returning along the same route in order to *223return her guests to their homes; she intended to make the turn from Fortieth street to Everett street; Fortieth street is a dirt road with a high center, and at its inter.section with Everett street is considerably higher than Everett street, causing a slope downhill in the highway where the turn was made; the defendant approached the turn at a rate of speed fixed as high as 30 to 35 miles an hour; she did not slow down, put on her brakes, or take her foot off the gas-feed accelerator; she went to the center of the street before attempting to turn; there was a distance of twelve feet (about a car’s length) in which to turn and go west on Everett street. The defendant was an experienced, licensed driver. With full knowledge of every factor of speed, road conditions, etc., she attempted to make the turn, failed, drove the car onto the parking, and traveled over 70 feet without, shutting off the gas or putting on the brakes. The car hit a tree when it was going 15 to 20 miles an hour, and the plaintiff was injured.
The accident and resulting damage was caused by the action of the defendant in making a turn at a high rate of speed, and under conditions where any driver should have known that accident and serious injury, if not death, Avould follow.
The majority opinion states: “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.” It is true that the defendants in their answer plead that the accident was “due entirely to the deflation or blowing out of the right tire on said automobile and the loss of control thereof.” It is also true that the evidence, even of the defendants, does not support that contention. The making of such a claim does not establish it to be a fact, nor does the assertion establish a defense. After the accident, there was a cut of two or three inches in the casing on the right rear wheel. The cause of the cut is not shown. The *224condition of the tube is not shown. The tire was flat ten or fifteen minutes after the accident. Its condition as to deflation prior thereto is not shown. The defendant car-owner testified that he examined the tracks after the accident, and they did not show the tire to have been flat. There is no testimony that the tire was flat before the-car hit the tree.
The majority opinion recites the testimony of the defendant that, “All I know is that I lost control of the car and I got so I could not hold the car in the track.” The testimony is correctly quoted. However, the clear inference of the quotation, as contained in the majority opinion, is that the defendant suddenly lost control of her car, causing the accident; that the loss of control was caused by the condition of the tire, and, hence, that it would not constitute gross negligence. The quoted statement was made in answer to this question, “What occurred as you made the turn?” On cross-examination, she -was asked if she noticed anything in the operation of the car as she attempted to make the turn that would indicate that she had a flat tire. She answered that just as she attempted to make the turn the car went into this “funny operation” and that she could not control it. She was then asked: “That is, you were attempting to swing it back into Everett street and could not do so? A. Yes, sir.” She further testified that she did not notice any swaying of the car as if it had a soft tire and did not hear a report as if there had been a blow-out.
It is clear from defendant’s testimony that the loss of control came after she had made the turn, and after the car was traveling in the parking, for she could not “swing it back into Everett street.” The cut in the casing is not shown to have been a contributing factor to the accident. The accident was caused by defendant’s act in making the turn; the other things that happened thereafter were the result of that act.
The majority opinion recites that plaintiff went riding with the defendant again two weeks after the accident. *225What difference does it make if she did? That fact does not negative gross negligence. The rights of the plaintiff and the liability of the defendant were fixed when the accident and the injury occurred. The later trip could not have any effect on that right and liability. It establishes nothing except the mental attitude of the plaintiff toward the defendant after the accident.
This court has held that gross negligence is “negligence of a very high degree that includes but does not necessarily extend to wanton, wilful or intentional disregard of the guest’s safety.” Gosnell v. Montgomery, 133 Neb. 871, 277 N. W. 429. (Italics ours.)
The majority opinion, as authority for its holding that the act of the defendant did not constitute gross negligence, cites a series of cases from other jurisdictions in which the elements of “conscious indifference,” “wanton and wilful misconduct,” “heedlessness,” and “wilful negligence” were present.
Proof of those elements is not necessary in order to establish gross negligence as defined by this court, and, accordingly, those cases should not be accepted as yardsticks to determine whether or not gross negligence existed in this case. The effect of this decision, based upon these citations, is to restrict further the right of injured guests to recover. It puts new elements into the heretofore accepted definition of gross negligence and wraps the cloak of legal immunity from liability, still more closely about those who disregard rules of safety in the driving of motor vehicles.
The majority opinion also cites cases of this court and of other jurisdictions which involved a blow-out, skidding, acts done by the driver to avoid accidents, unexpected and unobserved conditions or obstructions in the highway, the putting on of brakes suddenly after warning by a guest, a sudden stop to avoid hitting some one, an undisclosed danger in the course of travel. Those elements do not exist in this case, and, hence, those cases should not be taken as controlling of the decision herein.
*226As I see it, the majority opinion is erroneous in at least three particulars: First, it does not assume the truth of the evidence “tending to sustain the finding of the jury.” Second, it relies upon decided cases from this and other jurisdictions that contain controlling elements that are not in this case. Third, it does not apply the rules adopted in Morris v. Erskine, supra,, as to what constitutes gross negligence, and, in particular, does not follow the rule that the “question of negligence, whether slight or gross, is one of fact,” and that, where the evidence is “such that ordinary minds might draw different conclusions therefrom, then a question of fact is presented for the jury to determine.”
This court has repeatedly stated, as it did in Morris v. Erskine, supra, that “what amounts to gross negligence in any given case must depend upon the facts and circumstances” of each case.
There is ample evidence in this record to support the finding of the jury that the defendant was grossly negligent under the facts and circumstances of this case. This court should not substitute its conclusions of fact for the finding of the jury. It accordingly follows that plaintiff should be permitted to recover and that the judgment of the trial court should be affirmed.
- The majority opinion not only reverses the case, but dismisses it. This also, in my opinion, is erroneous. If the case is to be reversed, it should be remanded for further proceedings in the trial court as the parties and the trial court might determine. We should not assume that additional evidence cannot be secured.