Apel v. Queen City Coach Co., 279

• Decision Date: 13 April 1966
• Docket Number: No. 279,279
• Citation: 267 N.C. 25,147 S.E.2d 566
• Parties: Richard F. APEL v. QUEEN CITY COACH COMPANY, a corporation, d/b/a Queen City Trailways, and FrankVernon White.
• Court: North Carolina Supreme Court

Page 566

147 S.E.2d 566

267 N.C. 25

Richard F. APEL v. QUEEN CITY COACH COMPANY, a corporation, d/b/a Queen City Trailways, and FrankVernon White.

No. 279.

Supreme Court of North Carolina.

April 13, 1966.

Haynes, Graham, Bernstein & Baucom, by William E. Graham, Jr., Charlotte, for plaintiff appellee.

Charles T. Myers, John F. Ray, Charlotte, for defendants appellants.

HIGGINS, Justice.

The defendants made timely motions to nonsuit and to set aside the verdict as being contrary to the greater weight of the evidence. These motions involved the same legal questions. Martin v Underhill, 265 N.C. 669, 144 S.E.2d 872. They were properly denied. In fact, neither in their brief nor on the oral argument do the defendants seriously challenge the sufficiency of the evidence to go to the jury on issues of negligence and some injury. However, they do seriously contend the plaintiff's evidence with respect to the consequential damages charged in paragraph 16 of the complaint was insufficient to show such condition was proximately caused by the accident of March 6, 1962; or that the evidence offered was properly admissible on that issue. The court admitted the evidence over objection, and refused the defendants' written request to charge the jury not to consider it.

According to the plaintiff's evidence, he was driving south on Highway 221 at 1:30 in the daytime. Snow had been falling all day. Just before the accident, he met and passed the snow scraper going north on the highway. In his rearview mirror he saw the defendant's bus following him at a speed he estimated to be 50 miles per hour. He pulled as far to the right as the snow bank left by the scraper would permit. The bus struck the rear of his automobile. He testified as to the violence of the impact, his serious physical injuries and his suffering resulting directly from them. He introduced medical testimony of current injuries. Over defendants' objection, the court permitted the plaintiff's medical expert witnesses to testify in response to a hypothetical question that the loss of control over his elimination process 'could' or 'might' have resulted from the injury sustained in the March 6, 1962, accident.

The plaintiff admitted that he had undergone surgery for the removal of a malignant growth from his lower spinal cord in the year 1944. However, prior to the accident on March 6, 1962, he had not suffered any fecal incontinence, but in June thereafter the condition developed which he thought at the time was diarrhea but which got worse as time went on until he consulted Dr. Scheinberg who diagnosed his ailment and sent him to Dr. Ehlert who performed an exploratory operation on the lower spine in April, 1963. Both Dr. Scheinberg and Dr. Ehlert diagnosed the plaintiff's incontinency as resulting from the atrophy of the nerves and muscles of the lower body. They suspected that the growth (removed in 1944) had redeveloped, had become active, and was causing the atrophy. However, the exploratory operation proved negative.

On cross-examination, Dr. Scheinberg testified:

'The accident occurred and he began to have incontinency and difficulty with his right leg. And it's for that reason that I believe that is a relationship. As to whether just any kind of accident could have brought this on, I don't know about any kind of accident. I am asked to give my answer, assuming these facts to be true, do I have an opinion as to whether there was a relationship, and my answer was yes. * * * As to whether it's my opinion that the injury to the neck and injury to the shoulder could have brought on the fecal incontinence, I don't see how one could come to any other conclusion. I say it brought it on. That is to say, it precipitated it on the basis of the previous disease which was present. If this were not present before he had gotten well, the accident occurred and this was of such an intensity as to throw him about in the automobile and cause these two fractures, then I would say they are related. * * * I am relating my answer to the basis of the chronological coincidence which seems, according to these assumptions, irrefutable. If that's a relationship--I assume they are related, but how they are related, I don't know.'

The defendants may not complain that Dr. Scheinberg's quoted testimony goes beyond the 'could' or 'might have' limits permitted in relating the later developed disability to the accident of March 6, 1962. When challenged on cross-examination, Dr. Scheinberg stated: 'I don't see how one could come to any other conclusion. I say it brought it on.' The defendant brought out this testimony by a prodding cross-examination.

Dr. Allen, witness for the defendants, admitted to be a medical expert specializing in the field of neurosurgery, testified in response to the defendants' hypothetical question: 'Based on those facts, it is my opinion that the accident could not have caused Mr. Apel's fecal incontinence.'

The plaintiff's evidence, in the light most favorable to him, was ample to go to the jury and to support the finding the plaintiff was injured by the negligence of the defendants. The evidence of immediate physical injuries resulting from the accident was sufficient to justify a rather substantial award of damages, although the evidence does not disclose any great loss of earnings. However, it is apparent from the evidence that the major part of the jury's award was based on the evidence of fecal incontinence which developed three or more months subsequent to the 1962 accident. The questions arise whether the plaintiff's medical evidence was properly admissible and, when supplemented by the other testimony, furnishes a sufficient basis to support the entire award. The plaintiff's medical testimony indicates that probably some physical injury or trauma started the atrophy process (traumatic neurosis) which culminated in the loss of control of which the plaintiff now complains. It is evident the plaintiff's experts attach major importance to the chronological sequence of events. The only injuries disclosed in the evidence which could have had influence in producing the harmful result were: (1) the growth on the spinal...