Dowd v. Conroy

• Decision Date: 28 July 1992
• Docket Number: No. A-90-371,A-90-371
• Parties: James R. DOWD, Appellant, And ANR Freight System, Inc., a Foreign Corporation, Appellee, v. Richard W. CONROY, Appellee.
• Court: Nebraska Court of Appeals

Page 375

491 N.W.2d 375

1 Neb.App. 230

James R. DOWD, Appellant, And ANR Freight System, Inc., a Foreign Corporation, Appellee, v. Richard W. CONROY, Appellee.

No. A-90-371.

Court of Appeals of Nebraska.

July 28, 1992.

Michael G. Goodman of Cannon, Goodman, O'Brien & Grant, P.C., Omaha, for appellant.

Gary J. Nedved, of Bruckner, O'Gara, Keating, Sievers & Hendry, P.C., Lincoln, for appellee Conroy.

Before CONNOLLY, MILLER-LERMAN and WRIGHT, JJ.

CONNOLLY, Judge.

This appeal arises from an action in negligence based on an automobile-truck collision. The defendant, Richard W. Conroy, admitted liability at the pretrial conference, and the matter was tried on the issue of damages. The jury returned a verdict for the defendant. The plaintiff James R. Dowd appeals. We affirm.

FACTS

Although the defendant admitted liability, a factual background will be helpful for an understanding of the damage issues. Dowd was an over-the-road driver for ANR Freight Systems, Inc. The accident giving rise to this suit occurred around 6:30 a.m. on October 23, 1987. At the time of the accident, Dowd was driving a twin-trailer semi eastbound on Highway 2 in Lincoln, Nebraska.

Highway 2 is a four-lane highway intersected by Old Cheney Road. The intersection of the two roads is controlled by stop signs placed on Old Cheney Road.

Conroy's automobile was proceeding south on Old Cheney Road. Conroy stopped at the stop sign; he first checked the eastbound lanes for traffic and then checked the westbound lanes. Conroy waited for the westbound traffic to pass by in front of him and proceeded into the intersection without looking to the eastbound traffic again. He proceeded across the two lanes of westbound traffic on Highway 2, crossed the center lane into the first lane of eastbound traffic at 10 to 15 miles per hour, and there collided with the left side of Dowd's tractor.

Dowd testified that the front of Conroy's automobile initially collided with the left front wheel of the tractor. The impact to the front wheel tore loose a cup used to lubricate the wheel bearings, and oil was leaking from the front wheel after the impact. Dowd's testimony was that the automobile was spun around by the impact and that the automobile then hit the side of the truck. The automobile sheared off the step to the cab of the truck and damaged the left-side fuel tank. The hood and front bumper of the defendant's automobile were torn loose by the impact. Dowd's testimony was that at some point, a wheel on the tractor went up and over the body of Conroy's automobile.

Conroy's testimony conflicted with Dowd's, since Conroy testified that his automobile struck the side of the semi "just behind the cab in the fuel tank." He could not contradict Dowd's assertion that the front wheels or the rear drive wheels on the tractor went up and over the front of his automobile. He also testified that he observed that a seal was missing from the left front wheel of the tractor and that the seal was leaking oil.

Dowd testified that even though he was wearing a safety belt, he was thrown around inside the cab of the tractor. He testified that the tractor lurched to one side upon impact, as if it were about to topple over. This lurching was caused when the wheels of the truck rolled over the front of the automobile. Dowd testified that when the truck lurched to his right, his knees also moved to his right; that his left knee hit the dash or the steering column; and that his right knee hit the padded motor box. After rolling over the automobile, the truck moved to the left, and Dowd's head then struck the door to Dowd's left. Dowd testified that he felt sharp pain in his left knee after it hit the interior of the cab.

Dowd was transported to a hospital, and he returned to Kansas City, Missouri, later that evening. Physical therapy failed to reduce swelling in Dowd's knee, and Dowd visited an orthopedic surgeon, Dr. Robert D. Littlejohn.

Dr. Littlejohn performed arthroscopic surgery on Dowd's left knee on December 9, 1987. Dowd was unable to work from October 23, 1987, to February 8, 1988. Dowd's expenses for therapy were $8,195.06. Dowd presented evidence of $12,929.07 in lost wages.

Before the injury in the case at bar, Dowd had sustained three separate injuries to his left knee. In 1965, Dowd had his kneecap removed to remedy roughening of the articular cartilage, or chondromalacia, of the kneecap.

In 1980, Dowd fell through some ice and tore the lateral meniscus in his left knee. The meniscus is a type of cartilage that separates the tibia and femur and acts as a cushion between those two bones. Surgery was performed in 1980, and Dowd's lateral meniscus was partially removed. The surgical wound became infected.

On November 12, 1986, Dowd's knee "just gave away" as he was walking, and it became swollen. Dr. Littlejohn testified that this trauma could have been caused by a tear in the medial meniscus, by chondromalacia, or by arthritis. Dr. Littlejohn also testified that he had performed diagnostic arthroscopic surgery on November 24, 1986, and had discovered extensive articular adhesions which had been formed long before the knee "gave away." However, Dr. Littlejohn did not perform operative arthroscopy on November 24. Dowd was unable to work from November 12, 1986, to January 12, 1987. Dowd also testified that his knee had been subject to minor swelling and pain before the accident on October 23, 1987.

At the end of all the evidence, Dowd moved for directed verdict on the issues of medical expenses and lost wages. This motion was overruled.

During his closing argument, Dowd's counsel suggested to the jury that Dowd had a life expectancy of 24 years; counsel then requested that the jury return a verdict of $24,000 for past and future suffering, or $1,000 per year, or $3 per day. Defense counsel moved for a mistrial, which motion was overruled; the court then admonished the jury to disregard the per diem approach to assessing damages.

On March 14, 1990, the jury, in a 10 to 2 verdict, found for the defendant. Dowd moved for a new trial, which motion was overruled. Dowd now appeals to this court.

ASSIGNMENTS OF ERROR

On appeal, Dowd assigns the following errors: (1) The district court erred in overruling Dowd's motion for a partial directed verdict for medical expenses and lost wages, (2) the district court erred in admonishing the jury during Dowd's closing argument, and (3) the district court erred in overruling Dowd's motion for a new trial because the verdict was inadequate as a matter of law and was the result of passion, prejudice, mistake, or some other reason not apparent in the record.

PARTIAL DIRECTED VERDICT

In his first assignment of error, Dowd contends the court erred by not sustaining his motion for a partial directed verdict on medical expenses and lost wages.

A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. The party against whom the verdict is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the judgment is made, the case may not be decided as a matter of law. Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192 (1992).

The testimony in this case simply does not warrant a directed verdict for Dowd on his medical expenses and lost wages. The facts surrounding Dowd's injury are subject to multiple explanations, such that a reasonable mind cannot draw but one inference from them.

Dr. Littlejohn testified that during his treatment of Dowd's knee on December 9, 1987, he surgically removed extensive scar adhesions. These adhesions were so extensive that when the doctor had performed diagnostic arthroscopic surgery the previous year, he could not see that part of Dowd's lateral meniscus had been surgically removed.

Dr. Littlejohn testified that scar adhesions generally form within weeks to months after a trauma. However, Dr. Littlejohn also testified that he had not removed the scar adhesions during the arthroscopic surgery conducted in November 1986. Therefore, the scar adhesions that appeared during the arthroscopic surgery performed by Dr. Littlejohn on December 9, 1987, could have formed over a period of years or during the few months between the October 23 accident and the surgery on December 9.

Moreover, Dr. Littlejohn testified that his initial diagnosis of Dowd's October 1987 injury was that it was a bruise. He testified that his postoperative diagnosis was consistent with his initial diagnosis of a contusion, or bruise, and that there was no evidence of fresh tearing. In fact, the doctor did not find evidence of a recent injury, and he stated that most of the adhesions were from preexisting injuries.

The testimony concerning Dowd's injury does not admit only one inference. Sufficient evidence was adduced concerning Dowd's previous injuries to warrant the inference that preexisting scar adhesions and the removal of part of Dowd's lateral meniscus caused Dowd's knee to be inherently unstable and that Dowd's knee would be subject to swelling, stiffness, and disability even in the absence of an accident.

Accordingly, there is no merit in Dowd's contention that he was entitled to judgment as a matter of law for his medical expenses and lost wages.

JURY ADMONISHMENT

Dowd argues that the court erred by admonishing the jury in open court to disregard his counsel's formula for assessing damages for pain and suffering, thereby prejudicing Dowd's case.

Conduct of final argument is within the discretion of the trial court, and a trial court's ruling regarding final argument will not be disturbed absent abuse of that discretion. Sundeen v. Lehenbauer, 229 Neb. 727, 428 N.W.2d 629 (1988) (cit...