O'Neil v. Behrendt, 44247

• Citation: 212 Neb. 372,322 N.W.2d 790
• Decision Date: 06 August 1982
• Docket Number: No. 44247,44247
• Parties: Sandra Susan O'NEIL, Appellant, v. Jeffrey BEHRENDT, Appellee.
• Court: Nebraska Supreme Court

Page 790

322 N.W.2d 790

212 Neb. 372

Sandra Susan O'NEIL, Appellant, v. Jeffrey BEHRENDT, Appellee.

No. 44247.

Supreme Court of Nebraska.

Aug. 6, 1982.

Syllabus by the Court

1. Damages: Verdicts. Where the amount of damages allowed by a jury is clearly inadequate under the evidence in the case, it is error for the trial court to refuse to set aside such verdict.

2. Jury Instructions. If instructions given the jury, considered and construed together, are not sufficiently specific in some respects and counsel offers a requested instruction that is a proper statement of the law and which will supply the omission, it is reversible error for the trial court to refuse to give such instruction.

3. Damages: Appeal and Error: New Trial. Where error in a trial exists only as to the issue of damages and the judgment is in other respects free from error, and it is clear that no injustice will result from doing so, this court may, when remanding a cause for a new trial, limit the new trial to such issue.

Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Norman H. Wright of Fraser, Stryker, Veach, Vaughn, Meusey, Olson & Boyer, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

The plaintiff, Sandra Susan O'Neil, who was a passenger in a motor vehicle which was involved in an accident, has appealed from a jury verdict and judgment entered in her favor in the amount of $1,000, and from the subsequent order of the District Court which overruled her motion for a new trial. She assigns as error the inadequacy of the verdict and the failure of the trial court to instruct the jury on nonimputation of negligence to the plaintiff.

Mrs. O'Neil is a 34-year-old housewife and the mother of two children, ages 11 and 7 years. She is also a registered nurse, but with the exception of 2 years of part-time employment beginning in 1970, she has not practiced her profession since the birth of her first child in 1969.

On December 6, 1976, the plaintiff was a guest passenger in a motor vehicle being driven by a friend, Mrs. Constance Vawter. They were on their way to their church for a meeting of the Brownie troop of which the plaintiff was the leader. They drove west on Elm Street in the city of Omaha to 60th Street, which is a median-divided street, then turned north on 60th to Bancroft where a break in the median permitted them to turn back south on 60th by the use of a "U-turn." However, Mrs. Vawter was not able to complete the turn because her right front wheel struck the west curbing of 60th Street, causing her to stop headed in a southwesterly direction. Shortly thereafter, and before they were able to move, the motor vehicle in which the two women were riding was struck from the rear by one being operated in a southerly direction on 60th Street by the defendant, Jeffrey Behrendt.

Soon after the accident the plaintiff testified that she did not feel very good and started having double vision. She was then taken to Bergan-Mercy Hospital where she was seen in the emergency room by a physician, X-rayed, given some medication, and sent home to contact her own physician. She stated that she stayed in bed for a couple of days, and after getting up to attempt to carry on her normal activities, she began having some discomfort. After several weeks, she said, she realized she was not getting any better, she was having a lot of stiffness and pain, and so she made arrangements for an examination by Dr. Gerald Ries. According to the medical records this would have been on February 9, 1977. Dr. Ries took a series of X-rays, did an examination in the office, and prescribed medications for pain and relaxation. Mrs. O'Neil further testified that she saw Dr. Ries on a regular basis and took physical therapy under his direction for a period of 2 weeks. She continued to have pain in her neck and down into her shoulders, arms, and hands, and finally, in June of 1977, at the urging of Dr. Ries, she was admitted into Bergan-Mercy Hospital for a little over a week of additional therapy and traction.

On July 4, 1977, Mrs. O'Neil was in another automobile accident in which the car in which she was riding was struck in the rear by another automobile. It happened that the plaintiff had an appointment to see Dr. Ries on July 5, so she told him about the latest episode. However, she contends that the July 4 impact "really wasn't too bad," and that she did not have any more problems than those she was already experiencing. The plaintiff continued to see Dr. Ries every 6 to 8 weeks for some period of time, and was then told by him to just come in when needed. In July of 1979 Dr. Ries recommended a myelogram and anterior cervical fusion. However, because of the uncertainties involved, she said that she has never agreed to undergo those procedures. She has not had further medical care since that time. It should be stated at this point that Mrs. O'Neil also testified as to an automobile accident in which she was involved in 1968. Although she saw a physician as a result of that accident, she claimed that all symptoms disappeared within 1 month.

The plaintiff, in describing her activities since the 1976 accident, claims that there are many things around the house that she is unable to do, such as lifting, running the vacuum cleaner, and helping with the yard work. The plaintiff's description of the pain that she has suffered and the restriction on her activities was corroborated by the testimony of her husband.

Dr. Ries, a board-certified orthopedic surgeon, described the course of treatment given Mrs. O'Neil, which in substance is that as described by her. Of particular importance for our consideration is his description of the findings made during a December 21, 1977, examination of the plaintiff. He stated that she had pretty much discontinued use of a foam cervical collar which he had given her following the July 4 accident. According to him, she was still having some pain on the left side of her neck, which complaint had originated following the December 1976 accident. He made no mention of any right side pain which had been the area of her specific complaint due to the July 4 accident. He gave as his opinion that, as of the date of that examination, "I thought that she was pretty well over the symptoms and the findings that we had had from the July 4th accident, and told her that I felt that her problems in December were related to the problems that she was having prior to this [July 1977] accident."

It was Doctor Ries' opinion, based upon a reasonable degree of medical certainty, that as of the date of his last examination, July 25, 1979, the pain which she was then suffering was caused by the accident of December 6, 1976; that the symptoms would continue; and that as a result of that accident she would have approximately a 20 percent permanent impairment of her cervical spine. He also testified that the plaintiff would require future medical attention, and that he recommended a myelogram and the probability of a surgical anterior cervical...