Dallas & Mavis Forwarding Co. v. Liddell, 18609

• Decision Date: 22 April 1955
• Docket Number: No. 18609,18609
• Citation: 126 Ind.App. 113,126 N.E.2d 18
• Parties: DALLAS & MAVIS FORWARDING COMPANY, Inc., Appellant, v. Leota LIDDELL, Appellee.
• Court: Indiana Appellate Court

Page 18

126 N.E.2d 18

126 Ind.App. 113

DALLAS & MAVIS FORWARDING COMPANY, Inc., Appellant, v. Leota LIDDELL, Appellee.

No. 18609.

Appellate Court of Indiana, In Banc.

April 22, 1955.

Roland Obenchain, Jr., Roland Obenchain, Sr., Jones, Obenchain & Butler, South Bend, for appellant.

Winslow Van Horne, Auburn, for appellee.

ROYSE, Presiding Judge.

Appellee brought this action to recover damages for personal injuries sustained in a highway collision by reason of the negligence of an employee of appellant. Trial to a jury resulted in a verdict for $17,000 in favor of appellee. Judgment accordingly.

The error assigned here is the overruling of appellant's motion for a new trial. In its brief appellant specifically limits the question presented here to the fourth specification of that motion, that the damages are excessive.

In support of this contention appellant contends the evidence does not sustain the amount of damages awarded, and that the court erred in giving appellee's Instruction No. 6 over its objection.

While there was a sharp conflict in the medical testimony in this case, we may consider that only most favorable to the appellee. All of the medical witnesses agreed appellee was injured in the accident. The conflict arose over the results of that injury. There was evidence from a specialist in orthopedic surgery whose qualifications were not questioned that appellee was suffering from a traumatic spondylitis, or traumatic arthritis of her cervical spine and radiculitis or evidence of nerve root irritation; that this condition was the result of the injury she received in the accident; that this is a long-lasting condition. In answer to a question of appellant's counsel as to whether appellee's spondylitis is mild, moderate or severe, he said it was moderate.

Prior to the accident appellee was in good health. After the injury her neck became stiff and it hurt her to move it at times. She cannot do much of the housework she formerly performed. She cannot dust a room without sitting down to rest because her back aches when she bends down and then up. She has difficulty in getting out of bed in the mornings and she has to move around in a position so she can slip down on her knees to get up. She has to wear a surgical corset. This irritates and bruises her skin. She has suffered at least a partial loss of her grip. Her condition at the time of the trial (over two years after the accident) seemed worse than it was immediately thereafter.

Regardless of what our view may be as to the amount of the verdict, we cannot substitute our view for that of the jury unless it clearly appears that the amount is so large it cannot be explained on any reasonable hypothesis other than prejudice, passion, partiality, corruption, or other improper considerations. Pohlman v. Perry, 1952, 122 Ind.App. 222, 103 N.E.2d 911; Kawneer Manufacturing Company v. Kalter, 1917, 187 Ind. 99, 101, 102, 118 N.E. 561.

Upon the foregoing record we cannot disturb the verdict of the jury unless the giving of appellee's Instruction No. 6 is reversible error. Appellee's Instruction No. 6 given by the court is as follows:

'I instruct you that you are permitted to take judicial notice of the life expectancy which the plaintiff may be expected to have, that is how long she may be expected to live.'

Appellant's objection to this instruction is as follows:

'Defendant excepts and objects to the giving of plaintiff's tendered Instruction No. 6 for the reason that said instruction permits the jury deliberating upon the issues of fact in this action to take into consideration the expectancy of life of the plaintiff, as to which there has been no evidence adduced in this action, and for the further reason that it permits the jury to perform a function of the court--that is to say,...