Pidcock v. West

• Decision Date: 02 March 1920
• Docket Number: 10838.
• Citation: 102 S.E. 360,24 Ga.App. 785
• Parties: PIDCOCK v. WEST.
• Court: Georgia Court of Appeals

102 S.E. 360

24 Ga.App. 785

PIDCOCK v. WEST.

No. 10838.

Court of Appeals of Georgia, First Division

March 2, 1920

Syllabus by the Court.

The court did not err in refusing to give to the jury certain requested instructions as to the burden of proof, as the charge given covered substantially the principle embraced in the request.

There is nothing in the record or in the amount of the verdict to indicate that the verdict was the result of prejudice or bias on the part of the jury.

For no reason assigned did the court err in permitting the plaintiff "to make physical demonstration of her alleged injury."

The court did not err in admitting in evidence the "Carlisle Mortality Table," over the objections that it was irrelevant, that there was no allegation or proof of permanent injury to the plaintiff or reduced earning capacity, and no proof of the value of her services.

None of the objections urged as to the excerpt from the charge of the court in reference to compensation for future pain and suffering are good.

There is evidence to support the verdict.

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Action by Mrs. R. C. West against C. W. Pidcock, Sr. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F Way, of Moultrie, for plaintiff in error.

Jas Humphreys and Parker & Gibson, all of Moultrie, for defendant in error.

BLOODWORTH J.

This suit is based upon injuries received by the plaintiff in an automobile collision, in which the car of the defendant ran into the car in which the plaintiff was riding. A verdict of $1,500 in favor of plaintiff was returned, and the defendant excepted.

1. The court did not err in failing to give to the jury a requested instruction as follows:

"I charge you as a matter of law that there is no presumption of negligence against the defendant, and consequently the burden is on the plaintiff, not only to prove injury as alleged, but to prove that the defendant was guilty of some one or more acts of negligence set forth in the petition, and that such negligence of the defendant was the proximate cause of the injury received by the plaintiff."

The court did charge:

"The burden is upon the plaintiff to establish her case. The plaintiff must recover, if at all, by proving to your satisfaction by a preponderance of the testimony that the defendant was negligent in one or more of the ways in which plaintiff alleges in her petition that the defendant was negligent. She cannot recover for any other or different acts of negligence than those alleged in her petition, and it must appear, further, that in consequence of this negligence she was injured."

The charge given covered substantially the principle embraced in the request.

2. Complaint is made that the verdict "was so grossly excessive as to conclusively suggest bias and prejudice in favor of the plaintiff." To this contention we cannot assent. The record contains no proof of prejudice or bias and the amount of the damages awarded would not justify such a conclusion. Plaintiff was in the car belonging to Mr. West. She swore:

"My left arm was knocked out of place, and my hand all mashed, and a place cut in my arm on the under side. My wrist joint was dislocated, and a bone in my hand was broken or crushed. The gash was cut across my wrist. I come on to town with my son in his car, and got Dr. Harrell to give me medical assistance. He put my arm in a brace, and bandaged it from my elbow to my fingers. I wore my arm in those splints a little over five weeks. For three months my suffering was intense. Of course it was not so bad all the time, but for four or five weeks, though, it was pretty intense. The suffering has not entirely disappeared, and at times I suffer a great deal, and have had but little use of my arm since. I have not entirely recovered the use of my left hand. It is very tender to work in any way. * * * As a result from the injury I cannot do my own sewing. I can sweep just a little. I have to do the sweeping with my right hand. If there is much weight to the cooking utensils, I cannot handle them with my left hand. If I do I drop them."

The physician who attended Mrs. West swore:

"I found the wrist dislocated, cut across here [the doctor indicating]; do not remember which pressure, a gash about two inches long, and her arm was bruised, and the arm up here was bruised pretty well. I could not detect at that time that there were any broken bones. The wrist was dislocated and some of the bones were out of place, and after that I decided that there must have been some of those little bones broken. Now I am not an X-ray, but my opinion is that they are. I made an examination of the wrist about a week ago, and thought that I could detect one little bone that was broken or bruised. No, sir; the injury has not entirely recovered. In my opinion as a physician the injury is permanent. I cannot say to what extent it will disable her from the use of her left hand. I am a practicing physician, and have been for about 20 years. During that 20 years I have had ordinary experience of practicing medicine and treating wounds of this nature. Based upon that experience, my opinion is that this injury is permanent."

Under this evidence we cannot say that the verdict is so large as to "shock the moral sense." See Realty Bond & Mortgage Co. v. Harley, 19 Ga.App. 186(2), 187, 91 S.E. 254, and cases cited; Atkinson v. Taylor, 13 Ga.App. 100, 78 S.E. 830(1), and cases cited.

3. For no reason assigned did the court err in permitting "the plaintiff to make physical demonstration of her alleged injury," nor in making the same in the manner in which it was made. See Civil Code 1910, § 4644(4); Richmond & Danville R. Co. v. Childress, 82 Ga. 719, 9 S.E. 602, 3 L.R.A. 808, 14 Am.St.Rep. 189. In this connection see, also, Macon & Birmingham Ry. Co. v. Ross, 133 Ga. 83, 65 S.E. 146(1), and cases cited; Temples v. Central Ry. Co., 19 Ga.App. 308, 91 S.E. 502(5), 313, and cases cited.

4. It is alleged that the court erred in admitting the "Carlisle Mortality Table" over the objections that in the absence of an allegation and proof of reduced earning capacity, and of a permanent injury, it was not admissible that "it was immaterial and irrelevant;" that "plainti...