Pohlman v. Perry
| Decision Date | 28 February 1952 |
| Docket Number | No. 18214,18214 |
| Citation | 103 N.E.2d 911,122 Ind.App. 222 |
| Parties | POHLMAN v. PERRY. |
| Court | Indiana Appellate Court |
Davis & Gruenberg, Gary, for appellant.
James P. Gleason, Michigan City, Charles T. Clifford, Valparaiso, for appellee.
This is an action for damages as the result of an accident wherein appellee's wagon and tractor were struck from the rear by appellant's truck on a public highway.
The complaint was in two paragraphs, the first claiming damages for injuries sustained by appellee, and the second for medical expenses and loss of services of appellee's son. Verdict and judgment for the appellee was for $18,000.
The facts in the case are essentially as follows: The traveled portion of U. S. Highway No. 6, upon which the vehicles of both parties were traveling was paved and about 20 feet wide. There were level berms on each side which were also approximately 20 feet wide. The appellee was driving a John Deere farm tractor, pulling a farm wagon with a mowing machine thereon, with his son riding on the seat of said mowing machine, east on the right-hand side of said highway at a speed, according to his testimony, of about 15 or 16 miles per hour.
The appellant, through his employee, was operating an International tractor-trailer truck in the same direction and on the same side of the highway approaching the tractor and wagon of the appellee from the rear at a speed of 30 miles per hour. The truck weighed about 16,000 pounds. It was hauling a load of cattle weighing about 18,000 pounds. There was a passenger car between the appellant's truck and the appellee's tractor and wagon and, according to appellant's driver, his view beyond appellee was obstructed by the appellee's wagon and mower. The passenger car pulled to the left-hand side of the road and passed the farm tractor and wagon, and appellant started to follow with his truck.
After appellant had pulled to the left-hand side of the road, he discovered that an automobile was approaching from the opposite direction and he did not have time in which to pass the appellee. He therefore pulled back on the right-hand side of the highway and, when 12 to 15 feet from the rear of appellee's wagon, attempted to apply his brakes in order to avoid colliding with it. However, his brakes did not hold. He then tried to turn off onto the berm, but didn't have time, and the collision occurred.
It is contended by appellant (1) that the damages assessed by the jury are excessive; (2) that the appellant was not guilty of any negligence proximately causing the injuries complained of, and (3) appellee was guilty of contributory negligence which bars his right of recovery.
As to the amount of damages assessed, although it appears from the record that, if presented to this court, a verdict for a lesser amount might well have been affirmed. Nevertheless, it is not within the province of this court to reverse because of the damages assessed where there is any substantial evidence of probative value upon which reasonable men may have arrived at the amount of recovery fixed by the verdict. It is only for us to determine whether or not there is any such evidence of probative value upon which to support the verdict.
According to the evidence most favorable to appellee, as a result of the accident appellee incurred medical and hospital expenses in the sum of $1,254.25.
The evidence regarding the injury and loss of services of appellee's son is as follows: He was 15 years of age. Prior to the accident he was healthy and strong and would do 'most of the jobs that come upon a farm as well as any other man.' He suffered a severe skull fracture and a leg injury, as a result of the accident. Following the injury, he suffers from dizziness and his leg hurts him so that he cannot stand hot sun or hard work. The 'dizzy spells and headache are the normal aftermath of the skull fracture.' The evidence most favorable is that the value of his services was diminished $1,000.00 a year. There remained six years preceding his emancipation.
The favorable evidence regarding damages sustained by appellee because of his own injury is as follows: At the time of the accident appellee was a man 55 years of age. Prior thereto he was in good health and, with his son, was operating farms of 160 acres as a tenant farmer.
There is medical testimony that as a result of the accident appellee 'had a crushing injury to his chest, the back part of his rib cage, the cervical spine, neck of the chest wall or thoracic spine and injury to his lumbar spine.' He had a fracture of the 12th rib on the right side. He had a 'moderate advanced quiescent arthritis of the cervical spine,' that is the neck of the lumbar spine. That, as a result of appellee being struck from behind, 'the nerve cords are compressed and irritated and the muscles and ligaments are irritated from this concussion and compressing effect.' That by reason thereof appellee had 'pain in his neck and right hand side of his spine, the upper part of the head and scalp over his eyes, the back part of his chest, front part of his chest and back in the thoracic spine and lower back and more recently he had a spilling over, a weakness and radiating pain down the right leg.' These conditions were attributed to the spinal concussion resulting from the accident. During the year following the collision there was 'more progress in the fixation of his movements; definitely more limitation of motion of the spine both in the neck and lumbar spine.' At the time of the trial the arthritic condition was described as being the progressive type, for which nothing much more can be done except apply heat to alleviate the pain.
As a result of the accident appellee has and will continue to suffer severe pain. His ability to work has been materially impaired. Appellee testified that he cannot now farm without a great share of the farm work being done by others. The fact that special damages for appellee's own loss of income was neither pleaded nor proved has not been made an issue in this case.
Appellee was entitled to the earnings of his son for six years prior to his emancipation. Considering also appellee's own loss of earning capacity, the permanency of his injury, both his past and future pain and suffering and the medical expenses incurred by him, we cannot say that there was no evidence of probative value upon which reasonable men might assess damages in the sum of $18,000.00, and that the damages assessed were excessive.
Appellant's second contention is that there is no evidence that appellant was guilty of negligence causing...
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...impede normal and reasonable traffic is, broadly, one for the trier of the fact, when reasonable men could so find. Pohlman v. Perry, 122 Ind.App. 222, 103 N.E.2d 911, 915; Netterville v. Crawford, 233 Miss. 562, 103 So.2d 1. See also Gantt v. Hobson, 240 N.C. 426, 82 S.E.2d 384. But its ap......
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...any reasonable hypothesis other than prejudice, passion, partiality, corruption, or other improper considerations. Pohlman v. Perry, 1952, 122 Ind.App. 222, 103 N.E.2d 911; Kawneer Mfg. Co. v. Kalter, 1917, 187 Ind. 99, 101, 102, 118 N.E. 561. [Also see Lincoln Operating Co. v. Gillis (1953......
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...any reasonable hypothesis other than prejudice, passion, partiality, corruption, or other improper considerations. Pohlman v. Perry, 1952, 122 Ind.App. 222, 103 N.E.2d 911; Kawneer Manufacturing Co. v. Kalter, 1917, 187 Ind. 99, 101, 102, 118 N.E. See also Lincoln Operating Co. v. Gillis, 1......
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