Ballard v. King
| Decision Date | 18 October 1963 |
| Citation | 373 S.W.2d 591 |
| Parties | Myrtle BALLARD, Appellant, v. Stephen E. KING, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Ben Hanish (Hanish & Hanish), Louisville, for appellant.
Lively M. Wilson (Stites, Wood, Peabody & Helm), Louisville, for appellee.
STANLEY, Commissioner.
The appellant, Mrs. Myrtle Ballard, a passenger in an automobile driven by her daughter, was severely injured when a car driven by the appellee, Stephen E. King, ran into the rear of the automobile, and it, in turn, collided with a vehicle which had stopped in front of it. The defendant, now appellee, judically admitted liability in the action for damages. There were two trials, in both of which only the question of damages was submitted.
The verdict on the first trial was for $14,000, and judgment was entered thereon. On the defendant's motion, the verdict and judgment were set aside on the ground of excessiveness and a new trial ordered. On that trial the verdict and judgment were for $5,000.
The plaintiff moved the court to grant her a new trial 'and/or reinstate' the first verdict. The grounds of the motion were general and indefinite but contained allegations of inadequacy of the damages and error in instructing the jury. The motion was overruled, and the plaintiff has duly filed an appeal from that judgment. The evidence on both trials is brought up.
Under present procedure, where a judgment has been vacated, the order granting the new trial is regarded as interlocutory and reviewable on the appeal from the second judgment. Clay, CR 59.01, Comment 4; Cornett v. Wilder, Ky., 307 S.W.2d 752; White v. Hardin County Board of Education, Ky., 307 S.W.2d 754; Hardin v. Waddell, Ky., 316 S.W.2d 367.
The accident occurred on Dixie Highway in the suburbs of Louisville in the afternoon of December 28, 1958. When the automobile, driven by the defendant, a young man of sixteen years, who admittedly was not keeping a lookout for traffic ahead, rammed into the car in which the plaintiff was riding, it was as stated, knocked into an automobile ahead of it. The violent impact threw the plaintiff against the instrument panel. She was removed from the wreckage by police officers and taken to the city's general hospital in an ambulance. She was found to have sustained severe back, chest and other injuries. Prior to the accident Mrs. Ballard had lost the sight in her right eye, and at the hospital glass was removed from her left eye. She lay immobilized on a hospital table for a considerable period of time, suffering from pain in her eye, chest and back. An X-ray revealed a compression of a vertebra, or a lumbar fracture, or broken back. She was removed to another hospital and was confined there for about a week. She then stayed at her daughter's home for several weeks, most of the time in bed. Her daughter, who lived nearby, took her mother to the hospital in a wheelchair from time to time for further treatment.
The plaintiff was required to wear a steel brace for a period of six months and afterward to wear a special corset and support up to the time of the first trial, which was thirteen months after the accident. Before these injuries were sustained, the plaintiff, a 67-year-old widow, who lived in Hickman, Kentucky, was in good health, did her own housework, washed windows, mowed her yard and otherwise led an active life. During the intervening thirteen months the plaintiff had improved enough to do light housework but nothing heavy.
The plaintiff's orthopedic surgeons described her injuries in detail. One of them expressed the opinion that she had suffered permanent injury and would have periodic pain and probable need to wear a brace on occasion and require future medical attention. The other doctor was not asked as to the permanency of the injuries. Another orthopedic surgeon examined the plaintiff on the request of the defendant a year after she was injured. He found some tenderness in her back and stated she complained of pain...
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