This is the second appearance of this cause in this court. See Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482. Therein we vacated a verdict in favor of defendant Kenneth Patrick, reversed a judgment entered thereon, and remanded the cause generally for retrial. Plaintiff Joseph Bezdek's cause of action was again tried and submitted to a jury, which brought in a verdict for defendant on which judgment was entered. Plaintiff filed a motion for new trial and has perfected this appeal from the overruling thereof.

See also: Ripp v. Riesland et al., 170 Neb. 631, 104 382 N.W.2d 246; Bell v. Crook, 168 Neb. 685, 97 N.W.2d 352, 74 A.L.R.2d 223; Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482; and Nichols v. McArdle, 170 Neb. 382, 102 N.W.2d 848. In Ripp, supra, the issues were which of the parties had the right-of-way at the intersection where the collision occurred, and which of the parties was guilty of negligence which proximately caused or contributed to cause the accident.

A failure in the instructions to require this comparison is error. Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482, 489 (1959). The Nebraska court has held that the facts of a case may present, as a matter of law, more than comparative "slight" negligence on the part of the plaintiff or comparative "gross" negligence on the part of the defendant.

The appellant's argument centers primarily on what it regards as inconsistencies within the plaintiff's evidence of such degree and of such contrariety to undisputed physical facts as to require the evidence to be disregarded. We are aware, as Solomon urges, (a) that the fact Fisher drove the truck onto the highway does not, standing alone, establish negligence on his part, Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482, 491; (b) that "Where a plaintiff, without reasonable explanation, testifies to facts materially different concerning a vital issue than had previously been testified to by him under oath in another action, the change clearly being made to meet the exigencies of the pending action, the evidence is discredited as a matter of law and should be disregarded". Gohlinghorst v. Ruess, 146 Neb. 470, 20 N.W.2d 381.

"`"A trial court should eliminate immaterial and superfluous matters and submit to the jury by instructions only matters properly to be decided by it in arriving at its verdict."'" Empire State Building Co., supra at 192, 318 N.W.2d at 70, citing Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482 (1959). Because the instruction given contained an irrelevant issue, the judgment in this case is vacated and the cause remanded for a new trial.

However, Kahrhoff also alleged that Kohl had failed to have the automobile she was driving under control, meaning under reasonable control. In Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482 (1959), the plaintiff stopped his automobile at a stop sign and then started to drive across the street. He was unable, for some unknown cause, to shift from low gear to second and was losing speed, so he put the vehicle into low gear.

While it is true that Empire invited some of its difficulty by pleading a matter which it was not required to plead, that does not permit the court to instruct the jury on that matter, particularly where an objection is raised. We noted in Bezdek v. Patrick, 167 Neb. 754, 761, 94 N.W.2d 482, 489 (1959): "`A trial court should eliminate immaterial and superfluous matters and submit to the jury by instructions only matters properly to be decided by it in arriving at its verdict.'" See, also, Rogers v. Navajo Freight Lines, Inc., 186 Neb. 502, 184 N.W.2d 623 (1971).

The criterion by which the degree of negligence of plaintiff is to be measured is the extent thereof by comparison with the negligence of the defendant." See, also, Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482. Defendant's contention that gross negligence ought to be defined as a matter of degree in terms similar to the meaning of gross negligence under the guest statute was answered in Brackman v. Brackman, 169 Neb. 650, 100 N.W.2d 774.

We quote from the Ripp opinion where it was written: "Bezdek v. Patrick, supra, declares [ 167 Neb. 754, 94 N.W.2d [482] 485]: `The words "slight" and "gross" as employed in the comparative negligence act of this state are comparative terms. The test the statute provides is not based upon absolute degrees of negligence but rather upon a comparative test of the relative degrees of negligence between the parties.

'A trial court should eliminate immaterial and superfluous matters and submit to the jury by instructions only matters properly to be decided by it in arriving at its verdict.' Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482. See, also, Clark v. Smith, 181 Neb. 461, 149 N.W.2d 425.