Opinion
No. 32535.
January 25, 1937.
1. DAMAGES.
Where declaration in action for bodily injuries resulting from automobile collision alleged permanent injuries to kidneys, back, leg, and female organs, plaintiff's testimony in response to eliciting question that she suffered terrible pain in lower part of back during her monthly periods and had not so suffered before held improperly excluded, as bearing on damages, though she had previously denied having pains in parts of her body other than those already testified to.
2. AUTOMOBILES.
Issue of injured pedestrian's contributory negligence in walking on right side of highway was properly submitted to jury, under statute requiring pedestrians to walk on left side (Code 1930, section 5574).
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellant.
The exclusion of the testimony of the plaintiff of the evidence had in the absence of the jury is manifestly reversible.
As we understand the rule, any evidence which logically tends to prove the issues, or any of them, that are involved in the case, is competent. The extent of the plaintiff's injuries was one of the issues in the court below and the only issue before this court.
A contradiction by a witness only goes to the weight of such witness' testimony and is solely a jury question and cannot, in our opinion, affect the competency, and now that the jury has returned a verdict for the plaintiff for this small amount, where the court was almost driven to grant a directed verdict to the plaintiff, we certainly submit that the exclusion of this important element of damage constituted grave and reversible error.
If the operator of a machine is blinded by a light from another vehicle or from a street car, so that he is unable to distinguish an object in front, reasonable care requires that he bring his vehicle to a stop.
3-4 Huddy's Automobile Law, 243.
It is the duty of the driver of an automobile to stop his car when his vision is entirely obscured by a temporary obstruction, such as a cloud of dust or smoke screen. When failure to do so would jeopardize the safety of others, then he must remain at a standstill until the obstruction has come to an end.
1 Blashfield's Encyc. of Automobile Law, page 370; Dominick v. Haynes Bros., 127 So. 31; Divine v. Chester, 144 A. 322, 7 N.J. Misc. 131; Berddenberg v. Kavanaugh, 17 Ohio App. 252; Hammond v. Morrison, 90 N.J. Law 15, 100 A. 54.
The verdict is inadequate.
The court instructed the jury that it was this young lady's duty to walk against the traffic, and while this is the law, this was a condition and not a contributing cause to her injury. Then, too, a comparative negligence instruction was granted. Manifestly the jury was misled by these two instructions into believing that they should reduce whatever damages they would have otherwise awarded merely because of the fact that plaintiff was walking with and not against the traffic. This being so, not only is it not true that the court cannot say with any reasonable degree of certainty that plaintiff was not prejudiced thereby, but, on the contrary, is it not reasonably certain that she was
Leathers, Wallace Greaves, of Gulfport, for appellee.
The testimony of the two physicians in this case, who treated appellant, is wholly silent about any injuries to the appellant's female organs and as to any disturbance of her menstrual function. It is significant that appellant was treated by Dr. Weeks from the very beginning (though she did not call him to the witness stand to testify in her behalf), and she was also treated by him several days subsequent to the accident, and at no place in Dr. Weeks' testimony does he refer to any complaint to him by the appellant that she had sustained any injury such as that last above referred to, and as to which her testimony was excluded by the court, after she had been given full opportunity, on direct examination, to narrate and specify all of her injuries and complaints.
We submit that if appellant was suffering with this character of ailment as a result of the accident, that it is most significant that she did not mention the fact to either one of the physicians who treated her, and it is furthermore significant that if she had informed these physicians about it, they would certainly have known about it, and it may be reasonably assumed that they would have made an examination and diagnosis as to this particular menstrual complaint, in which event the appellant could certainly have proven that alleged disorder by her physicians.
All that the court did was to exclude testimony, the effect of which would have been to allow the appellant to magnify and comment on her injuries beyond the reasonable and permissible limits allowed by the applicable rules of evidence in such instances, and the action of the court in so doing was manifestly proper because if appellant had been permitted to do that, after having been given a full opportunity to state all of the injuries which she had suffered, the effect of it would have been to prejudice the rights of the defendant, contrary to the law and rules of evidence applicable in such situations.
The most that can be said about this case, when boiled down to its final analysis, is that the jury, by its verdict, concluded that Mrs. Anticich was guilty of negligence and also found that the appellant was guilty of negligence which contributed to appellant's injuries; that there is in the record abundant evidence to justify the jury in so finding as it did and in reducing the appellant's damages by the amount which the jury found from the evidence her own negligence contributed to her injuries.
It is unnecessary to cite authorities to the proposition that the jury had a right to fix the quantum of damages that the appellant was entitled to recover, as shown by the evidence of her injuries and the nature, character and extent thereof, and after taking into consideration all of the facts with reference to these injuries and the duration of them, as shown by the evidence; and that it also had the right to reduce these damages by such amount as it concluded the negligence of the appellant contributed thereto, as shown by the evidence. This question was peculiarly within the province of the jury, and it is submitted that a review of all of the testimony in this record shows that the jury probably reached a correct conclusion by its verdict in this case.
City of Lumberton v. Schrader, 168 So. 77; Pounders v. Day, 118 So. 298, 151 Miss. 436.
It is respectfully submitted that on the whole record and in the light thereof, no harm has resulted to the appellant because of any of the rulings and actions of the court below, complained of by the appellant and that the judgment, considering the whole record, is correct and should be affirmed.
Planters Lbr. Co. v. Sibley, 93 So. 440, 130 Miss. 26; Ladnier v. Ingram Day Lbr. Co., 100 So. 369, 135 Miss. 632; Miss. Central R.R. Co. v. Roberts, 160 So. 604; Gulf, M. N.R. Co. v. Willis, 158 So. 551, 171 Miss. 733.
Argued orally by Chalmers Potter, for appellant, and by R.A. Wallace, for appellee.
Lucile Basque, a high school girl about eighteen years old, while walking on the public highway from Biloxi toward Ocean Springs was struck by an automobile driven by Mrs. Mary Anticich and traveling in the same direction as appellant. Appellant and her witnesses testified that she was walking on the graveled shoulder of the highway in a path at the extreme right of the road; that she was knocked down, rendered unconscious, and suffered some injury. As an adverse witness, Mrs. Anticich testified that an automobile was parked on the concrete pavement, which was about eighteen feet wide at that point, and that when she came within seventy-five feet of it, driving about twenty miles an hour, the lights of the parked car were suddenly turned on and she was blinded; that she continued to drive in that situation until she had about passed the parked car. The evidence tended to show that a man was undertaking to repair the lights of the parked car. Quite a few witnesses testified that Mrs. Anticich was driving without any lights. The appellant testified that she looked back, saw the Anticich car coming without any lights on, went to the extreme side of the shoulder and was struck by the car.
Mrs. Anticich as a witness for herself testified that the lights on the parked car were not turned on until she was about twenty-one feet from it, and that she stopped immediately and did not know that she had struck appellant. The appellant was picked up and carried to a hospital.
The declaration alleged that the appellant suffered serious and permanent internal injuries to her kidneys, her back, her left limb, and female organs. After she had been questioned about her various injuries she was asked by her counsel if there were any aches or pains on any other parts of her body, to which she replied, "No, sir." Counsel for appellant sought to elicit the extent of the injury to her female organs. Counsel for appellee objected to this evidence because it had not been sued for in the declaration. Appellant testified in the absence of the jury to terrible pain in the lower part of her back during her monthly periods and that she had not so suffered before. The court sustained the objection of the appellee to this evidence and did not permit it to go to the jury. A physician testified that a blow from an automobile might cause injury to the female organs.
The main assignment of error in this case is that the court erred in excluding this testimony. We do not think there is any question but that this evidence should have been permitted to go to the jury. Before appellant was asked about this particular injury she had stated that it was all the injury she had suffered. It was not for the court to pass upon the weight of the evidence; that was for the jury. We cannot say that this evidence, if allowed to go to the jury, would not have been considered by it as favorable to the appellant in fixing the amount of her damages.
The jury rendered a verdict for the appellant for five hundred dollars. A motion for a new trial was entered, mainly on the ground that the verdict was inadequate, and the motion was overruled by the court.
The court below granted appellee an instruction submitting to the jury the question of contributory negligence of appellant, in that she was walking on the highway in violation of section 5574, Code of 1930, the material part of which is: "All pedestrians walking along the public highway shall walk on the left side of the road, or in such way as to face the direction from which cars using that side of the road are approaching." Appellant's testimony is that she was walking on the right side of the road and in the direction in which cars were moving on that side of the road. It was clearly a question for the jury as to whether or not she was negligent under the circumstances, and no error was committed in giving the instruction.
For the error in excluding the evidence of the appellant the case must be reversed for another trial on the question of damages alone.
Affirmed as to liability; reversed and remanded as to amount of damages.