Bailey v. Bradford
| Decision Date | 05 February 1968 |
| Docket Number | No. 5--4446,5--4446 |
| Citation | 423 S.W.2d 565,244 Ark. 8 |
| Court | Arkansas Supreme Court |
| Parties | Earnest BAILEY, Jr., and Lawrence Davis, Appellants, v. Vickie Sue BRADFORD et al., Appellees. |
Joe P. Melton and Chas. A. Walls, Jr., Lonoke, for appellants.
Martin, Dodds & Kidd and Lowber Hendricks, Jr., Little Rock, for appellees.
On a November afternoon in 1964 the plaintiff-appellees, Mr. and Mrs. Earnest Bradford and their seven-year-old daughter Vickie Sue, were passengers in a car traveling north through the city of Cabot. While the car was waiting for a line of traffic to move forward it was struck from the rear by a truck owned by the appellant Bailey and being driven by his employee, the appellant Davis. There is no question about the appellants' liability: Davis, aged 77, admitted that he did not even see the Bradford car before the collision. This appeal is from a verdict and judgment for $30,000 in favor of Vickie Sue.
The point that has given us the greatest concern is the appellants' contention that the court erred in instructing the jury that they might consider whether Vickie Sue's injuries were temporary or permanent and might consider any pain and suffering reasonably certain to be experienced by her in the future. AMI 2202 and 2205.
On the issue of permanency the testimony amply supports the giving of the instruction. Vickie Sue suffered a brain injury, evidenced by bleeding from her nose, mouth, and ears, and by a discharge of spinal fluid from both ears. She was at first in a very critical conditiion and did not regain consciousness for four or five days. Upon similar facts we held in Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840 (1930), that the injury of itself indicated its permanency. Other facts confirming that conclusion will be mentioned in a moment.
The difficult question is that of future pain and suffering, because those elements of damage are to be submitted to the jury only if they are 'reasonably certain' to be experienced in the future. AMI 2205; McCord v. Bailey, 195 Ark. 862, 114 S.W.2d 840 (1938); St. Louis, I.M. & S. Ry. v. Bird, 106 Ark. 177, 153 S.W. 104 (1913). Here the medical testimony falls short of meeting that test of submissibility. Dr. Weber testified that there is a good possibility that the child had suffered permanent brain damage that might lead to epileptic seizures or convulsions in the future. A 'good possibility,' however, does not meet the standard of reasonable certainty laid down in the Bird case and other decisions to the same effect.
Nevertheless, there is testimony by lay witnesses that supports the trial court's action in the matter. Vickie Sue's mother testified that at the time of the trial, more than two years after the accident, Vickie Sue still had a fear of riding in an automobile, still had trouble with her speech, and still suffered headaches. The child's father testified that Vickie Sue could not carry on a conversation 'without getting tangled up with her words and having to stop.'
We must conclude that the lay testimony, which the jury were at liberty to accept despite...
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