Hanberry v. Fitzgerald

• Decision Date: 20 May 1963
• Docket Number: No. 7190,7190
• Citation: 72 N.M. 383,384 P.2d 256,1963 NMSC 100
• Parties: Saradan HANBERRY and Travelers Insurance Company, a corporation, Plaintiffs-Appellees, v. A. P. FITZGERALD, George Anderman and P. P. Glasebrook d/b/a Albuquerque Bus Company, and Jessie W. Harris, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 256

384 P.2d 256

72 N.M. 383

Saradan HANBERRY and Travelers Insurance Company, a corporation, Plaintiffs-Appellees, v. A. P. FITZGERALD, George Anderman and P. P. Glasebrook d/b/a Albuquerque Bus Company, and Jessie W. Harris Defendants-Appellants.

No. 7190.

Supreme Court of New Mexico.

May 20, 1963.

Rehearing Denied Aug. 26, 1963.

Merritt W. Oldaker, Roy F. Miller, Jr., William H. Oldaker, Albuquerque, for appellants.

Arturo G. Ortega, Albuquerque, for appellee Saradan Hanberry.

Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, for appellee Travelers Insurance Company.

CARMODY, Justice.

This is an appeal from a jury verdict and judgment thereon, in favor of the plaintiff below, arising out of an automobile-bus collision in which the plaintiff suffered severe injuries.

The errors asserted consist of abuse of discretion in the admission of certain testimony, the failure to grant motions to direct a verdict and to amend, the giving of and refusal to give certain instructions, and the claim that the verdict is excessive, requiring a remittitur or a new trial.

The interests of Miss Hanberry and Travelers Insurance Company are common, inasmuch as Travelers is the insurance carrier of Miss Hanberry's employer and was awarded reimbursement for money paid under the workmen's compensation act. There is no contest regarding the right to reimbursement; so, for clarity, the parties will be referred to as they appeared below, the plaintiff in the singular, so also the defendant, even though the bus company and the driver Harris are separately named as defendants.

The accident occurred on a rainy night, shortly after 9:30, on a paved street in Albuquerque, New Mexico. Plaintiff's car and defendant's bus collided on a moderate S-curve, about midway between two intersecting streets. The vehicles were traveling in opposite directions and the left rear of the bus struck the left front of the car. The point of impact was on the plaintiff's side of the center line of the street. The speed of the vehicles, their location on the street, and whether the bus was skidding, were highly controverted questions.

The trial lasted some six days, during which both the liability question and the personal-injury, or damage, questions were about equally hard-fought. Plaintiff's injury was principally a fractured dislocation of the left hip joint. She had to undergo some four operations, culminating in a hip fusion, and during a part of her long hospitalization, she developed a thrombophlebitis, which was no longer active after the fusion. However, about nine months before the trial (which actually took place a little more than four years after the accident), plaintiff developed an ulcer near her left ankle, caused by the thrombophlebitis. Although it was recommended by specialists that she undergo yet another operation to strip and tie the varicose veins and have a skin graft in the ulcerated area, she refused to do this, preferring to be treated, while hospitalized, by a general practitioner who utilized a conservative treatment in clearing up the infection.

At the time of trial, the plaintiff was still using crutches, because of weakness resulting from her almost five-months' stay in the hospital for the treatment of the ulcer.

The jury rendered its verdict, awarding the plaintiff $199,000.00 and Travelers $17,910.20.

Defendant relies upon ten separate points for reversal, in all but three of which the contention is made, directly or indirectly, that the amount of the verdict was influenced by sympathy, passion and prejudice. Actually, one of defendant's separate points is specifically directed to this issue, and we will consider this point separately after otherwise disposing of defendant's remaining contentions.

The first, second and third points relied upon for reversal relate to a claimed abuse of discretion on the part of the trial court, and defendant bears a heavy burden, in view of the long-standing rule that we will not overturn the action of the trial court absent a patent abuse or manifest error in the exercise of the discretion. See, State ex rel. Meyers Co. v. Raynolds, 1917, 22 N.M. 473, 164 P. 830; Martinez v. Cook, 1953, 57 N.M. 263, 258 P.2d 375; In re Stern's Will, 1956, 61 N.M. 446, 301 P.2d 1094; Coastal Plains Oil Co. v. Douglas, 1961, 69 N.M. 68, 364 P.2d 131. With this rule in mind, therefore, we consider the three points somewhat together.

In the first place, defendant urges that Dr. Rivas, the general practitioner who cared for plaintiff due to the ulcerated condition of her leg shortly before trial, should not have been allowed to testify to the proper medical treatment and what was or was not recognized as proper medical procedure in connection therewith. The testimony was admitted over objection, after the doctor had testified that he was not actually qualified in the field of circulatory ailments, known as vascular diseases. The doctor, however, was regularly licensed to practice medicine. The whole problem related to what was the proper treatment for plaintiff's condition. The gist of defendant's claim is that there were two other doctors who were qualified as experts in vascular diseases, and that, therefore, the court should have refused to allow the testimony of Dr. Rivas on the subject.

Defendant draws too fine a line; as long as Dr. Rivas was a qualified medical expert, we do not feel that it is a matter for the court to rule out his testimony as to a particular specialty within the general broad field, but it is rather a question of the weight, if any, to be given the expert testimony as determined by the jury under proper instructions from the court. Los Alamos Medical Center v. Coe, 1954, 58 N.M. 686, 275 P.2d 175, 50 A.L.R.2d 1033; Hamilton v. Doty, 1958, 65 N.M. 270, 335 P.2d 1067; Beal v. Southern Union Gas Co., 1960, 66 N.M. 424, 349 P.2d 337, 84 A.L.R.2d 1269; Landers v. Atchison, Topeka & Santa Fe Railway Co., 1961, 68 N.M. 130, 359 P.2d 522; Yates v. Matthews, 1963, 71 N.M. 451, 379 P.2d 441.

Defendant's second point related, in part, to the testimony of Dr. Rivas and is based upon the following circumstances: Some twenty-one close-up colored photographs were taken of plaintiff's ankle. These pictures covered the period from May 4, 1961, to September 20, 1961, and it is claimed that, by sheer numbers, they were inclined to prejudice the jury.

Although we are inclined to agree that allowing so many almost-identical pictures in evidence could have very little value except to arouse the sympathy of the jury, we would not, upon the basis of the number of pictures alone, be inclined to direct a reversal. We, however, would caution the trial courts that such practice is a dangerous one, and the trial judges should exercise considerable care in order to prevent possible prejudice.

As a part of this claim of error, the defendant also objects to a demonstration which occurred in court when Dr. Rivas removed the elastic stocking which the plaintiff was required to wear, to show the ulcerated area and also to demonstrate the difficulty plaintiff had in removing and putting on the elastic stocking. We see no particular abuse in this respect, unless it is considered that this demonstration was of no actual aid to the jury in an evidentiary sense and was impliedly only for the purpose of arousing sympathy. Compare Beal v. Southern Union Gas Co., supra.

Defendant's third point, which, as stated, also involved the discretion of the trial court, had to do with testimony introduced through a former police officer who specialized in testimony as an expert on speed. In this instance, the defendant's argument goes not only to the qualifications of the expert, but also to the claimed fact that his final conclusion of the speed of the bus was not warranted under his own testimony. With respect to his qualifications, there was no abuse of discretion on the part of the court. The other facet of the argument, however, requires a consideration of a part of the witness's testimony.

It is claimed by the defendant that the witness did not know whether the bus was skidding at an angle, and, not knowing about this factor, he could not form an opinion as to the speed. A careful examination of the testimony, however, convinces us that defendant places undue emphasis upon certain answers made by the witness, without considering the testimony as a whole. As we view the witness's testimony, he arrived at his determination of speed on the theory that the wheels of the bus were locked, and that, therefore, based upon the skid marks, it was immaterial whether the bus was skidding sideways or traveling in a normal direction. When the testimony is viewed in this light, we see no abuse of discretion on the part of the court in permitting his estimate of speed, nor were there any matters considered by the so-called expert which were not properly before the jury by way of evidence. Landers v. Atchison, Topeka & Santa Fe Railway Co., supra.

This particular witness's testimony is also brought into question, because the defendant claims that the court, in giving its unavoidable-accident instruction, stated as a part thereof that the unavoidable-accident doctrine would not apply if they found that the bus driver was driving in excess of twenty-five miles per hour, inasmuch as this would be negligence.

There is no merit to this claim of error, because, as we have heretofore said, the testimony was admissible, and, besides, there was other competent testimony regarding speed which would support the reference to it in the instruction.

Therefore, as to defendant's first three points, these were matters within the discretion of the trial court, and such discretion will not be disturbed, except to the extent that we feel the matter must be considered under our consideration of the defendant's claimed error of the excessive verdict, which will be hereafter discussed by us.

Defendant's...