Armstrong v. Hickman County Highway Dept.

• Decision Date: 23 September 1987
• Citation: 743 S.W.2d 189
• Parties: Mattie Ruth ARMSTRONG and Oscar Armstrong, Plaintiffs-Appellants, v. HICKMAN COUNTY HIGHWAY DEPARTMENT and Hickman County, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 189

743 S.W.2d 189

Mattie Ruth ARMSTRONG and Oscar Armstrong, Plaintiffs-Appellants, v. HICKMAN COUNTY HIGHWAY DEPARTMENT and Hickman County Defendants-Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Sept. 23, 1987.

Permission to Appeal Denied by Supreme Court

Dec. 28, 1987.

David O. Huff, Edward L. Hiland, Nashville, for plaintiffs-appellants.

Jerry Colley, Columbia, for defendants-appellees.

OPINION

TODD, Presiding Judge.

Mattie Ruth Armstrong was injured when struck by a wheel which disengaged from a Hickman County Highway Department vehicle operated by William Davis. Mrs. Armstrong and her husband, Oscar Armstrong, filed this suit for damages incident to her injuries. The Trial Judge, sitting without a jury, awarded judgments against Hickman County Highway Department and Hickman County in favor of Mrs. Armstrong for $50,000 and in favor of Mr. Armstrong for $5,000 and dismissed their suits against William Davis.

Plaintiffs have appealed and presented four issues, of which the first is as follows:

Was the negligence of defendants the proximate cause of the January 18, 1984, fall of plaintiff, Mattie Ruth Armstrong, and the resulting injuries and damages to her and Oscar Armstrong?

Mrs. Armstrong was struck by the errant wheel on November 14, 1983, at which time she suffered a fractured left wrist and a fractured left ankle. The fall mentioned in the issue occurred on January 18, 1984, at which time Mrs. Armstrong suffered fractures of the left femur and hip. It is the insistence of plaintiffs that the fall on January 18, 1984, and the resultant injuries were the proximate results of the injuries she received on November 14, 1983.

In response to a written request for findings of fact, the Trial Judge adopted his oral statement at the conclusion of the trial which includes the following:

Now, I do not think the evidence sustains the contention that the hip fracture was the proximate result of the negligence of the county's employees.

In 65 C.J.S. Negligence Sec. 106, p. 106, is found the following text:

Although there is authority which is apparently to the contrary, it has been stated that, if the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's bodily efficiency not been impaired, and this rule has been said to apply not only when the second accident increases the harm to the member originally injured or causes new injury to it, but also when the second accident causes harm to some other part of the other's body.

A number of authorities from other jurisdictions are listed in the footnote under the above text. An examination of said authorities establishes that, generally, the issues of the proximate causal relationship between the first injury and the second injury and contributory negligence of the injured party are questions of fact for the finder of fact.

In Eichstadt v. Underwood, Ky. 1960, 337 S.W.2d 684, the Kentucky Court of Appeals affirmed a jury verdict and judgment for a plaintiff whose leg was fractured by defendant's negligence and who thereafter fell and broke her hip while exercising the injured leg in conformity with instructions of her physician.

In East Tennessee Tel. Co. v. Jeffries, 153 Ky. 133, 154 S.W. 1112 (1913), the plaintiff suffered three successive injuries to his left leg which was ultimately amputated. The evidence was in conflict as to which injury rendered the amputation necessary. The Kentucky Court held that the proximate cause of the amputation was for the jury.

In Stahl v. Southern M.R. Co., 211 Mich. 350, 178 N.W. 710 (1920), plaintiff's first injury was to her back while alighting from defendant's train. Later, a suitcase fell against her and she fell, fracturing her hip. The Michigan Court affirmed a judgment for plaintiff holding that if the fall was due to the previous back injury and plaintiff's own negligence did not contribute to the fall, the railroad was liable for the broken hip.

In Campbell v. Brown, 276 Mich. 449, 267 N.W. 877 (1936), plaintiff's left fibula was broken by negligence of defendant. After partial recovery, plaintiff slipped and fell fracturing her left femur. The Michigan Court held that the causal relationship between the first and second injury was for the jury.

In Bender v. Welsh, 344 Pa. 392, 25 A.2d 182 (1942) plaintiff's leg was initially injured by negligence of defendant. Subsequently he fell and was injured otherwise. The Pennsylvania Court held that, if the subsequent fall was attributable to the failure of the injured leg to function properly, the second injury was the result of the first.

In Nikisher v. Benninger, 377 Pa. 564, 105 A.2d 281 (1954) plaintiff's left femur was broken by negligence of defendant and repaired by installation of a metal plate. While convalescing, plaintiff attempted to get out of bed, his hand slipped and he fell, re-breaking the femur at the same site. The appellate court held that, if plaintiff was following the instructions of his physician and the fall was caused by the collapse of the previous fracture, the second injury was the proximate result of the first.

In S.S. Kresge Co. v. Kenney, 66 App.D.C. 274, 86 F.2d 651 (1936) the plaintiff suffered a broken pelvis and other injuries from negligence of defendant. While convalescing, under instructions to move about with assistance, she attempted to get a drink of water from a bottle on a mantel beside her bed, staggered backward, fell and broke her back. Despite the opinion of plaintiff's physician that the first injury caused the second, the appellate court reversed a judgment for the plaintiff for the second injury, holding that no reasonable juror could fail to conclude that plaintiff was negligent at the second fall by knowingly attempting a movement which she could not perform safely by herself.

In Zogg v. O'Bryan, 314 Ky. 821, 237 S.W.2d 511 (1951) the Kentucky Court affirmed a judgment excluding damages for reinjury of a knee because there was no showing that it was caused by the first injury and that it might have been caused by plaintiff's own negligence or disobedience of doctor's orders.

In Ewing v. Moody, Ky. 1967, 421 S.W.2d 577, the Kentucky Court affirmed a jury verdict excluding damages for a second injury holding that such damages could be allowed only upon a finding that the second injury was the direct and proximate result of the first and that the plaintiff had the burden of proving such.

In Wineberg v. DuBois, 209 Pa. 430, 58 A. 807 (1904) a judgment for a second injury was reversed because the record failed to establish that the first injury caused the second and established that the plaintiff failed to exercise proper care at the second injury.

In Stephenson v. F.W. Woolworth Co., 1967, 277 Minn. 190, 152 N.W.2d 138, 31 A.L.R.3d 990, the Minnesota Court affirmed a judgment for second injury damages, holding that the causal relationship between the first and second injury was usually a question for the jury.

In Eli Witt Cigar and Tobacco Co. v. Matatics, Fla. 1951, 55 So.2d 549, plaintiffs first injury included a brain concussion from which he appeared to recover. Thereafter, he suffered a dizzy spell and fell, injuring his spine causing paralysis. The appellate court affirmed a judgment for the second injury holding that evidence that plaintiff had no dizzy spells before the first injury, that he had a dizzy spell 3 or 4 days before the second injury and that a concussion could cause dizzy spells after, were sufficient to support a jury verdict of proximate cause.

In Mulquinn v. Lock Joint Pike Co., 13 N.J.Super. 467, 80 A.2d 634 (1951) the appellate court affirmed a judgment for the reinjury of a broken arm where the evidence was in conflict as to causal connection, holding that the question was one of fact for the jury.

In Marshall v. City of Pittsburgh, 119 Pa.Super. 189, 180 A. 733 (1935), a previously injured knee "gave way" during the descent of a stair, causing a fatal fall. The appellate court affirmed compensation for the death holding the evidence sufficient to show a causal relation between the first and second injury.

In Watkins v. Hand, 198 Neb. 451, 253 N.W. 287 (1977), 10 months after the first injury, plaintiff "blacked out" causing a second accident and injury. The appellate court reversed a judgment for the plaintiff holding that the evidence did not support a causal relationship between the first injury and the "black out".

In the present case, the plaintiffs had the burden of proving that the January fall was the proximate result of the injuries received by her in the previous November.

The testimony of Mrs. Armstrong on the cause of her fall is as follows:

Q. All right. Were you able to get around very well at all?

A. Just on the walker.

Q. Okay. Now, we have heard about a second injury, could you tell us how that occurred?

A. Well, I just got up to go in the bathroom. See, I had this big cast up to my knee and I had a shoe with a heel that fit it--was as high was this heel on the case. So, I got inside of the bathroom door, my hand was still weak and it slipped and it threw me over on the bathtub. I tried to straighten it up and, see, the bathtub is on the right side, but it threw me over across and hit me on the left side.

....

Q. Now, what time of the night was this when you fell?

A. About 3:30.

Q. That would really be 3:30 a.m.

A. In the morning.

Q. And who was there at the house when you fell?

A. My husband.

....

Q. I assume you had been asleep and you got up to go to the bathroom; is that right?

A. That's right.

Q. Did you have the lights on in the bathroom?

A. Yes, always.

Q. Okay.

A. And other lights was on. I turned the lights on as I went through.

Q. Okay. Had you gotten inside the bathroom when you fell?

A. Yes.

Q. How did you happen to fall? What happened in the bathroom that...