Baer Bros., Inc. v. Keller

• Decision Date: 10 January 1956
• Docket Number: No. 66,66
• Citation: 208 Md. 556,119 A.2d 410
• Parties: BAER BROTHERS, Inc. v. Ross G. KELLER, Sr.
• Court: Maryland Court of Appeals

Page 556

208 Md. 556

119 A.2d 410

BAER BROTHERS, Inc. v. Ross G. KELLER, Sr.

No. 66.

Court of Appeals of Maryland.

Jan. 10, 1956.

William H. Geppert, Cumberland (Gunter & Geppert, Cumberland, on the brief), for appellant.

Thomas N. Berry, Cumberland, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal by Baer Brothers, Inc., appellant, from a judgment against it, and in favor of Ross G. Keller, Sr., appellee.

On February 25, 1954, about 10 A.M., a collision occurred between appellant's truck and appellee's automobile, operated by appellee, near Cumberland, Maryland. No question is raised in this appeal as to the liability of the appellant. The question here is as to damages.

The appellant contends that the trial court should have granted its fourth prayer instructing the jury that they could not award damages for permanent injury and that the court should have incorporated in its charge appellant's fifth and sixth prayers. The fifth prayer concluded with the words 'and if the jury find for the plaintiff, they cannot allow any damages for permanent injuries.' The sixth prayer requested the instruction 'that all the symptoms of plaintiff's alleged injury are subjective, that there is no evidence of any physical impairment or defect and no indication of its probable duration, then such injury is not of a permanent nature and the Jury may not allow damages for permanent injuries.'

The question before us is whether the jury should have been instructed that there was no evidence from which they could find that the apellee had suffered permanent injuries.

In deciding whether the jury should be instructed that there was no evidence from which they could find that the appellee had suffered permanent injuries, the Court should resolve all conflicts in the evidence in favor of the appellee and should assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the appellee's right to recover. Eisenhower v. Baltimore Transit Co., 190 Md. 528, 532, 59 A.2d 313, and cases there cited. We will therefore recite the evidence in a light most favorable to the appellee.

The appellee testified as follows. His automobile was struck by the appellant, back of the front door. After he got out of his car he felt 'all bruised up.' He thought that 'in a couple of minutes' he would be all right. The collision 'bent everything in, the wheel and all.' He was knocked up in the air. On cross-examination, when asked whether the State trooper asked him after the accident whether he was hurt, he replied: 'I think he did. I won't say for sure. I said I am just shookup a little bit, I don't think I am hurt.' He said he 'was a little stoved up.' When he got home that evening he became sick in his stomach and had to go to bed. His neck and back hurt him all that night and he was unable to go to work. The next morning he went to see Dr. Murray, who prescribed rest, heat, and massage. His neck and back kept him awake night after night. About a month after the accident Dr. Murray had him admitted to the hospital where he was placed 'in a skin traction.' There he was given X-ray treatments for his back and neck. He stayed in the hospital for eleven days. The X-ray treatments did not help him. He had a collar or brace on his neck for twenty-eight days. He then took it off for about two hours each day. When his neck started hurting him again he would put the collar on. As long as he was wearing it, he was relieved, but after he took it off his back and neck ached him when he walked and also when he was trying to sleep at night. At the time of the trial on January 24, 1955, he was still wearing a brace which was a regular back support and which he wore all the time. Before the accident he was employed as a freight handler by the Baltimore and Ohio Railroad doing manual labor. He had not worked since the accident because his back and neck hurt him. Some mornings he could hardly get out of bed. At the time of the accident either the door struck his head or he hit his head on the dashboard. At the trial he indicated just where his neck and back hurt him.

At the request of counsel for appellant, appellee was examined by Dr. Zimmerman on October 14, 1954. He said that the X-ray examination showed no evidence of bone or joint injury or disease. He diagnosed appellee's disability as traumatic myocitis which is a sore muscle. He further stated: 'And complains that he has pains in the left side of his back and when he walks a few steps it hurts. When he turns his head to the side he feels it clicking in his neck. I examined him and the man had pain when I pressed over the base of his neck and the back.'

Dr. Murray testified that the appellee was his patient. He stated in reference to the accident on February 25, 1954, that the appellee came to him and told him about the accident. The patient told him that 'he was rattled about in the car,' strained his neck and back, hurt his left knee and was generally 'roughed up.' He had been treating him ever since that time. He sent him to the hospital for X-rays and also sent him to Dr. Rathbone for X-rays. He put him in the hospital for a rest and traction on his back and had him put in a collar to hold his neck and keep his head steady to relieve the pain. He had been giving him medicine to relieve the pain and relax his muscles. He said: 'I don't think he is any better than he was eleven months ago when he was hurt.' He testified that, in his opinion, appellee was not able to do any work at all. When asked the question whether appellee was permanently injured, he replied: 'He won't be able to do any heavy work or hard work again. The injury to his neck has affected his left arm to a certain extent. He has numbness and tingling and a feeling of tingling in his fingers, and he can't use his left arm as well as he could, showing there must be some pressure on some of the nerve roots in the cervical region of the neck, that is, in the cervical region or the cervical spine. His x-rays, as I say, didn't show anything. Sometimes x-rays don't show things. He not only has that, but he has at times when he goes to turn his head, he has a distinct click in his neck, which would only be from or an arthritic condition, which the x-rays do not show and have not shown. What it hasn't I don't know. That is the reason I had his neck x-rayed again in order to see whether it did show any arthritic deposits or any little pieces of bone chipped loose or something of that sort in the cervical vertebrae. Because the symptoms that he has with his neck, the pain running down his neck from the back and runs down over his shoulder on his arm, and his fingers get tingling and numb, would show there is a nerve injury present. He had had that for at least, that particular symptom, he has had that for about five or six months, because I have been seeing him about every two or three weeks during the past--well, in fact, from the beginning of the time up till now. * * * He has not been able to rest well. According to his complaint he would wake up sometimes with violent headaches and pain in his neck and pain down his arm. He is wearing a brace on his back. He is not able to stoop down and twist himself about properly on account of the pain in his low back. The neck symptoms are the ones most exaggerated. He has had pain down his left leg showing some pressure, possibly on his sciatic nerve. This has all come on since his injury. He didn't have as much of this sort of thing when Dr. Mirkin examined him last August, but he has been progressively getting these symptoms right along since that time, showing that he has spinal injury somewhere, at least in the cervical region and in his low back. Now his knee has been all right, the left knee. He gets along with that all right after traction on it; it became better. But his back is still bad and he has had to wear this brace. He wears at times the collar for neck. When he wakes he gets very tired and his neck pains him, and that is certainly not normal. The x-ray shows no bone symptoms. I have known people who had a back broken and the x-ray didn't show anything. I don't put any reliance on x-ray of the spine. It doesn't seem they ever get what is right. A man may have a vertebra broken or cracked or something and the x-ray doesn't show it and he may have a disc that is injured and the x-ray doesn't show it. I have seen too many of these cases and I happen to know that.' On cross-examination he stated that his diagnosis was the same as Dr. Mirkin. He further said he thought appellee had some bone injury which was not shown by the X-ray and that his neck had not shown any improvement. He further stated that the only way he knew that appellee had pain was because he so told him. 'It doesn't show.' From the length of time he would say that appellee certainly had some permanent injury. He further stated: 'This man has stiffness of his back, lumbar muscles to show that he has pain and that he had an injury. He has some rigidity of his lumbar muscles. They should be pliable. He should be able to stoop up and down properly and backwards and forwards, but he couldn't do that because he has some rigidity of the muscles.'

Dr. Mirkin, to whom the appellee was sent by Dr. Murray and who was called as a witness by the appellant, testified that the X-ray films did not show any disease of the bones or joints. He said in his opinion the appellee 'had sustained a traumatic myocitis of the lumbar and cervical regions. I will explain that a little bit. Myocitis...