Owen v. Dix

• Decision Date: 28 October 1946
• Docket Number: 4-7967
• Citation: 196 S.W.2d 913,210 Ark. 562
• Parties: Owen v. Dix
• Court: Arkansas Supreme Court

196 S.W.2d 913

210 Ark. 562

Owen v. Dix

No. 4-7967

Supreme Court of Arkansas

October 28, 1946

Appeal from Second Division Circuit Court, Pulaski County; Lawrence C. Auten, Judge.

Affirmed.

Sherrill Cockrill & Wills, for appellant.

Talley Owen & Talley, Sam Robinson and Tom W Campbcll, for appellee.

OPINION

Holt, J.

February 7, 1946, a jury awarded appellee damages in the amount of $ 7,500 to compensate an injury sustained while a passenger on one of appellant's buses, and from the judgment comes this appeal.

A number of errors have been assigned in the motion for a new trial, but only three are argued here by appellant. These alleged errors are: (1) That the evidence is not sufficient to support the verdict; (2) that the court erred in permitting Dr. Autrey to answer a certain hypothetical question, and (3) that the judgment was excessive.

1.

The evidence was to the following effect: April 16. 1945, appellee was a passenger on appellant's bus going into Camden when the bus "hit a concrete bridge railing and post" causing an injury to his back. His version, of how the injury occurred, was: "A. I was on the bus on the front seat on the right side, as I said, sitting next to the window. We were riding along just before we got to the Ouachita River bridge, riding along, I judge, about thirty miles an hour, that is what I judge, and all of a sudden as we had gotten on one of those bridges, there are several bridges along there, as we got on one of bridges the bus swerved over to the right hitting the railing and post real hard lick throwing me forward off the seat. . . . I was thrown from the seat forward and the bus, after the first impact, went on down sliding hitting the post. I don't know how many different bumps but from the time it bumped, after it hit the first impact, I don't remember, but after the bus stopped I was lying down on my back holding onto the rod up here (indicating). Q. Is there a rod in front there? A. Yes, sir. Q. Did you suffer any pain? A. I sure did. Q. Where? A. In my back. Q. Where in your back? A. Low down, small of my back." When the bus "struck a hard lick against the concrete banister and post of the bridge" it "peeled the metal on the outside of the bus back quite a way, broke up the floor and bent the rod in front" of appellee. He was thrown forward and the small of his back hurt, causing him great pain, which caused him to "roll and tumble that night all night long," and kept him from sleeping. He tried to work, but was unable to do so because of the severe pain in his back. He quit work, returned home, and called a doctor who referred him to Dr. Newman, who later operated on him. Prior to the injury which he received on the bus from the collision, he had always been able to work, but has been unable to do any kind of labor since the collision and injury. Dr. Newman first saw appellee on May 29, 1945, following the injury which occurred on April 16th. Another physician treated him between those dates.

On November 25th, the pain in the lower part of appellee's spine became so great that an operation was performed by Dr. Newman. Appellee has since been under observation and his progress has been "very satisfactory." Dr. Newman testified in effect that appellee had had, for a long time, perhaps from childhood, a weakened disc in the lower part of his spine that had become "rotten" that was more susceptible to a rupture than a healthy normal disc and that when appellee sustained the injury to his back in the collision, the jar "set off a condition that was present," and caused it to rupture. We quote from Dr. Newman's testimony: "He (appellee) was carried under observation because I thought at the time he did have a ruptured intervertebral disc, and judging from the nerve changes it would be at the point where the first nerve passes the lumbo-sacral joint. The first nerve root comes out between the first and second sacral where we most frequently get ruptures. X-rays were taken which verified my findings of loss of lumbar curve. The spine was pulled in in a straight row. It also showed some degeneration or absence of the disc at the lumbo-sacral joint and probably some at the fourth inter space. It was my impression that he did have a ruptured disc. . . . Q. The rupture itself, when it actually protruded out, would that be attributable to the accident? A. We attribute that to the accident," and on cross-examination, Dr. Newman testified: "Q. The condition was that the disc had degenerated? A. It was all rotten. Q. That had been going on for some time? A. Very likely had." On re-cross examination: "Q. Condition of that kind you might say the disc was in a weakened condition from some cause or other and that would make a person more susceptible to a rupture than otherwise? A. That is right. Q. In other words, a perfectly healthy normal disc it would take a greater injury to cause a rupture than one in a weak condition? A. We find that it does; you have got a diseased condition, if you want to call it that," and on redirect examination: "Q. Then your opinion is the accident itself is what precipitated the rupture? A. It set off a condition which was present. It probably had caused him no pain. He may have had some back aches or something like that but you get a minor injury and that may set it off and from then on it usually progresses; it is a progressive type of procedure. . . . Q. I believe you say this injury as you described it would be sufficient producing cause to bring about the rupture? A. It is sufficient to open that back up and start it protruding out. Q. And cause him to be disabled where he wasn't disabled before? A. That's right."

Dr. Newman further testified: "90 per cent. of that rupture came from between the fourth and fifth lumbar and fifth lumbar and first sacral; those spaces were open on the right side. I think I got a good handful of this rotten cartilagineous material out of each of the spaces."

Dr. Autrey, in answer to the hypothetical question presently referred to, which closed with the query: "State to the jury your opinion as to what caused his present condition?" answered, "I think his accident caused it."

Under this evidence, together with all the other testimony in the case, we are unable to say that there was no question for the jury as to appellee's suffering and condition having been proximately caused by the injury received while a passenger on appellant's bus.

The testimony of Dr. Newman, who performed the operation, tended to show that appellee had a diseased condition of the disc in his lower spine for a long period of time, perhaps from childhood, prior to his injury on the bus; that the disc had become weak and "rotten" and more susceptible to rupture than a normal disc, and that his bus injury "set off a pre-existing condition that was present," causing a rupture of the disc.

The rule appears to be well settled that when a defendant's negligence aggravates, or brings into activity, a dormant or diseased condition or one to which the injured person is predisposed, the defendant is liable to the injured person for the full amount of the damages which ensue, notwithstanding such diseased or weakened condition.

In 38 American Jurisprudence, p. 741, § 82, it is said "The established rule is that where the result of an accident is to bring into activity a dormant or incipient disease, or one to which the injured person is predisposed, the negligence which caused the accident is the proximate cause of the disability, and the person responsible for the negligence is liable for the entire damages which ensue. It cannot be said that the development of the disability under such circumstances was not a consequence which might naturally follow from the injury," and in 15 American Jurisprudence, p. 490, § 81, we find: "The general rule seems to be that...