Anderson v. Jaeger

• Decision Date: 09 September 1975
• Docket Number: No. 48244,48244
• Citation: 317 So.2d 902
• Parties: Dora ANDERSON v. Mrs. Burt JAEGER and Sam Laine.
• Court: Mississippi Supreme Court

Page 902

317 So.2d 902

Dora ANDERSON v. Mrs. Burt JAEGER and Sam Laine.

No. 48244.

Supreme Court of Mississippi.

Sept. 9, 1975.

Watkins & Eager, James A. Becker, Jr., Velia Ann Mayer, Jackson, Hatcher & Westerfield, Cleveland, for appellant.

Jacobs, Griffith & McIntosh, Cleveland, Wise Carter Child Steen & Caraway, Jackson, for appellees.

Before RODGERS, SMITH and WALKER, JJ.

SMITH, Justice.

Dora Anderson was plaintiff and Mrs. Burt Jaeger and Sam Laine were defendants in an action for damages for physical injuries sustained by plaintiff in a motor vehicle collision. The issues were submitted to a jury which returned a verdict for Defendant Jaeger but awarded Plaintiff Anderson $35,000 against Defendant Laine.

Anderson has appealed from the judgment for Defendant Jaeger. She also has appealed from the judgment awarded her against Defendant Laine. The latter appeal is based upon a contention that the $35,000 award is grossly inadequate and that her motion for a new trial upon the issue of damages alone should have been sustained. Laine has cross-appealed, assigning as error the trial court's refusal to grant a peremptory instruction requested by him.

In addition to her contention that the trial court should have sustained her motion for a new trial upon the ground that the verdict was grossly inadequate, Anderson assigns as error the overruling of objections to testimony of a Dr. Scarborough, an expert witness offered by Defendant Jaeger, and 'in allowing' counsel for Jaeger to 'get matters before the jury by suggestive questions,' to the witness contrary to a prior ruling for the court.

The three-vehicle collision, in which Appellant Anderson was injured occurred at a street crossing controlled by a traffic light. At the time Anderson was a 'nurse's aide' and was riding in an ambulance dispatched to pick up an 'O.B.' patient. Laine was the driver of the ambulance. Without burdening this opinion with needless detail, the evidence is ample to justify a jury finding that the ambulance was unnecessarily traveling at an excessive and dangerous rate of speed under the circumstances, with siren going and light flashing, and entered the intersection from the West, against the red light signal as Jaeger, driving her closed passenger automobile, entered from the North on the green signal. There was a collision between the two vehicles which also involved a third vehicle driven by a Mrs. Coury, who is not a party to this litigation.

The verdict of the jury on the issue of Laine's liability is challenged on cross-appeal by Laine but we find that there was sufficient evidence to support the jury's finding that the collision was the proximate result of his negligence in the operation of the ambulance.

Appellant Anderson does not assign as error a failure to instruct the jury to find for her peremptorily against Defendant Jaeger on the issue of liability. Her contention as against Jaeger, is directed in the main to the proposition that the trial court erred in overruling objections to testimony given by Dr. Scarborough, offered by Jaeger as an expert physicist to testify as to the scientific characteristics of sound and as to certain experiments he had conducted at the scene, and to alleged 'suggestive' questions addressed to him. Shortly after Dr. Scarborough began his testimony, the trial court excused the jury and there was an extended hearing outside the presence of the jury, (covering 30 pages of the record), at the conclusion of which the trial court declined to allow the witness to testify as to the result of his experiments. In so ruling, the trial court was correct if for no other reason than that there was a failure to establish any reasonably substantial similarity between conditions prevailing at the time of the experiments with those which had existed when the collision occurred. Out of the presence of the jury the trial court ruled that Dr. Scarborough could testify generally, however, about the relative situations of the several persons who heard or failed to hear the siren of the approaching ambulance. Counsel for Anderson and for Laine, following this ruling by the Court, stated, 'We can stipulate as to that.'

When Dr. Scarborough was first placed on the stand, before the jury was excluded, he had stated his qualifications as a physicist and had testified, without objection in the presence of the jury, that he had been employed by Jaeger 'to do a study' by going to:

(T)he intersection of Sunflower and Fourth in Clarksdale, Mississippi, and to measure the relative sound levels at certain points around that intersection due to a high, shrill noise such as a siren coming across the bridge.

Q. All right, did you make such a study?

A. Yes. I did.

Notwithstanding this testimony, given without objection before the jury, the contention is now made that the questions subsequently addressed to the Witness Scarborough in the presence of the jury after its return were prejudicially suggestive and allowed the jury to know that such a study had been made. The trial court ruled that the witness might give general testimony as to which of the three persons, Mrs. Jaeger, Mrs. Coury, and a man who had been sitting in front of a filling station, was in the best relative position to hear outside sounds. It was following this ruling that counsel for Anderson and for Laine each stated: 'We can stipulate that.'

The examination then proceeded without objection:

Q. May 29. Were you employed by me to make an investigation for me?

A. Yes.

Q. What was the scope of the investigation that I asked you to make, Mr. Scarborough?

A. I was to determine the noise levels at various points around the intersection in question, which would be due to a loud shrill sound such as a siren, coming across the Fourth Street bridge toward the intersection.

The witness then gave the results of certain measurements of distances between locations at and approaching the intersection, again without objection. After testimony about the characteristics of sound waves, the first objection was interposed by counsel for Defendant Laine to this question:

Q. Now, if you will discuss the ability of a person located at that point to hear a siren coming across the bridge?

MR. CARRAWAY:-If the Court please, we object; I thought we were just-that the only thing that would go in would be a broad, general comparison of the three respective positions, and not anything-and it appears we are getting into spedific which as I understand the ruling on yesterday was going to be limited.

Counsel for Anderson made no objection and there was no specific ruling on the objection interposed by Mr. Carraway. The court restated his ruling upon the limits of the examination, and Mr. Carraway said:

It is our understanding, Judge, that doesn't include any tests that he made or any details of any tests, he did.

COURT: Nor any measurements or anything of that nature.

MR. JACOBS: All right, we understand that the sound measurements are excluded by the Court.

Although no ruling was called for, the court indicated that the question was not properly framed and it was abandoned and not answered. The examination of the witness continued without objection until the witness was asked to 'discuss the characteristics of sound as applied to that position,' 'that position' having included buildings and other physical characteristics at the intersection. At this point counsel for Defendant Laine interposed, '. . . we have no objection to him comparing the three positions, or places, where the three people were, Mrs. Coury, Willie Sommeville, and Mrs. Jaeger, in respect to each other, we think that's the extent to which the witness can testify.' The court agreed and the examination continued. Without objection, the witness testified:

Q.-What obstructions, if any, were there to the hearing of Mrs. Jaeger...