dissenting in part.
I dissent from that portion of the majority opinion which holds the Nebraska guest statute constitutional. The basic reasons are set forth in my dissent in Hale v. Taylor, 192 Neb. 298, 220 N. W. 2d 378.
Rational and logical arguments may be made in support of each of the two divergent judicial views regarding the constitutionality of automobile guest statutes. In weighing the conflicting viewpoints, the unequal justice visited upon thousands of guest passengers in the name of legislative public policy becomes the critical weight which tips the scales of justice in favor of the determination that equal protection of the law is denied by the guest statute.
No one really denies that many of the factual assumptions which gave rise to the basic philosophy of the guest statute have disappeared or changed drastically since the statute was adopted in Nebraska in 1931. in the 1975 Legislature, repeal of the guest statute is pending again. Obviously, the Legislature must now determine, in the light of modern concepts of automobile travel and social policy, whether the factual assumptions which supported the initial adoption of the automobile guest statute in 1931 are still present, and, if so, whether they justify the continuation of the public policy reflected by the Nebraska guest statute.
I concur in the determination that there was sufficient evidence of gross negligence in this case to require submission of the case to the jury.