Pygman v. Helton, 12259

Decision Date25 February 1964
Docket NumberNo. 12259,12259
Citation134 S.E.2d 717,148 W.Va. 281
CourtWest Virginia Supreme Court
PartiesFrank PYGMAN et al. v. Lon D. HELTON.
Syllabus by the Court

1. Medical testimony to be admissible and sufficient to warrant a finding by the jury of the proximate cause of an injury is not required to be based upon a reasonable certainty that the injury resulted from the negligence of the defendant. All that is required to render such testimony admissible and sufficient to carry it to the jury is that it should be of such character as would warrant a reasonable inference by the jury that the injury in question was caused by the negligent act or conduct of the defendant.

2. Upon a motion to exclude evidence the trial court should entertain every reasonable and legitimate inference favorable to the party opposing such motion fairly arising from the evidence, considered as a whole, and should assume as true facts which a jury might properly find from such evidence.

3. To permit a recovery of damages based on negligence the negligence of the defendant must be the proximate cause of the injury for which the plaintiff seeks to recover.

4. Proximate cause is a vital and essential element of actionable negligence to warrant a recovery; and the question of proximate cause is for the jury when the evidence relating to it is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

Quinlan, Nelson & Williamson, H. G. Williamson, Huntington, for appellant.

Jenkins & Jenkins, John E. Jenkins, Jr., Huntington, for appellee.

HAYMOND, President.

This is a civil action for the recovery by the plaintiffs, Frank Pygman and Eva Lee Pygman, from the defendant, Lon D. Helton, of damages for personal injuries sustained by both plaintiffs and property damage to the automobile of the plaintiff, Frank Pygman, alleged to have been caused by the negligence of the defendant. Upon the trial of the action in the Circuit Court of Cabell County the jury returned a verdict in favor of each plaintiff for $250.00. The trial court by final judgment entered April 26, 1963, denied the motion of the plaintiff Frank Pygman to set aside the judgment rendered in his favor upon the verdict of the jury on November 14, 1962. From the judgment of April 26, 1963, this Court granted this appeal upon the application of the plaintiff Frank Pygman. No application for an appeal has been made by the plaintiff Eva Lee Pygman from the judgment rendered in her favor on November 14, 1962, and that judgment has now become final and unappealable.

The evidence in behalf of the plaintiffs shows clearly that the defendant was guilty of negligence which was the proximate cause of the collision in which the plaintiffs were injured and the automobile of the plaintiff Frank Pygman was damaged; that the damage to the automobile amounted to approximately $178.00; that the plaintiff Eva Lee Pygman, who was employed at a manufacturing plant, sustained painful but not permanent injuries to her back and her right knee and incurred doctors' fees in the amount of $130.75. As to the personal injuries sustained by the plaintiff Frank Pygman the evidence shows that his body was 'thrown' against the steering wheel and his stomach was 'thrown' against the inside of the automobile; that he felt no pain, except in his arms and shoulders immediately after the collision or until the next evening after it occurred. At that time he was reclining and watching television and when he 'raised up' to get ready to go to bed he felt a burning and sharp pain in the lower left portion of his stomach.

The collision occurred at about 11:40 o'clock on the night of December 22, 1961, and the plaintiff Frank Pygman, believing that the pain would disappear, decided to postpone his visit to a doctor for a few days in the belief that his condition would improve. During that time, however, the pain increased and on January 2, 1962, he consulted a physician who examined him and found that he was suffering from a moderately large inguinal hernia in the left lower portion of his abdomen. Following this diagnosis he was required to submit to a surgical operation which lasted for approximately one hour to repair the hernia and as a result of the operation he was hospitalized for a period of six days. He was unable to return to his work for a period of approximately six weeks and for a period of four months after the operation he was unable to walk in his usual normal manner. At the time of the trial he still experienced pain and tenderness in the area of the operation. As a result of the hernia he incurred doctors' charges of $150.00, hospital expenses of approximately $214.05 and loss of wages of $154.00.

The evidence with respect to the cause of the hernia consisted of the testimony of the plaintiff Frank Pygman, the surgeon who performed the operation, and a physician who examined him prior to the collision and at the time of the examination found that he did not have a hernia. The plaintiff Frank Pygman testified that in the collision his body was 'thrown up into the wheel, and my stomach, and my arms were thrown against the side of the car, and my legs were jolted, my body thrown around.'; that shortly after the collision he and his wife went to a hospital where his wife was examined and treated and where they remained for about an hour and a half; that he did not experience any pain the night of the accident, except that his arms and his shoulders were sore; and that the real pain he experienced occurred the next evening. Concerning the pain he gave this testimony: 'Q. And where was that pain? A. It was in the lower part of my stomach on the left side, down in the lower part of my stomach, and my left testicle. Q. And what was the nature of that pain? A. Well, I had lay down and was watching television, and I got up to get ready to go to bed, and when I raised up I felt this kind of burning pain and sharp pain down there all at once, and it felt very sore and tender. Q. Had you ever experienced any such pain before? A. No, sir, I hadn't.' There was also testimony by a medical witness in behalf of the plaintiff Frank Pygman that he had previously been given a medical examination in connection with his employment and that such examination did not disclose the existence of any hernia.

The testimony concerning the hernia by the surgeon who performed the operation is indicated by these questions and answers: 'Q. * * * Doctor, with your knowledge of the history of this case as related to you by Mr. Pygman can you state with reasonable certainty that--whether or not with reasonable certainty this accident caused this hernia? A. The only answer that I can give, which would be--as far as--I would say that it was possible. It could cause it. It is possible. Q. May I put it this way. In view and keeping in mind a reasonable degree of medical certainty, Doctor, is this hernia consonant with an accident of this kind? * * * A. Yes, any accident or injury which increases intra-abdominal pressure can cause a hernia.' On cross-examination this witness was asked these questions and gave these answers: 'Q. Doctor, what type of things can cause a hernia of the type that Mr. Pygman had? For example, if I stand here and bend over like this can that cause such a hernia? A. Yes, sir, it is possible. Q. Do you see many cases of the type of hernia which Mr. Pygman has in your practice? A. Very, very frequently. Q. Do they occur many times, of the type that he had, of people who are not involved in accidents? A. Yes, sir. Q. I see. I believe that in this case you gave a medical report to one of the attorneys for the plaintiff in which you stated that it was impossible for you to tell whether the accident caused this hernia, did you not? * * * A. It is impossible for me to tell with absolute certainty whether this accident caused this hernia. Q. That is true also even with reasonable certainty, isn't it? A. Yes.'

At the conclusion of the evidence introduced by the plaintiffs and after they had rested with respect to their proof the defendant moved the court to strike the evidence of the surgeon who performed the operation for the hernia on the ground that it was not sufficient to show that the hernia was caused by the collision. The court sustained the motion and instructed the jury that any damage resulting from the hernia was not a proper element of damages and directed the jury to disregard and not to consider the evidence relating to the hernia.

The defendant offered no evidence upon the trial and the case was submitted to the jury upon the evidence in behalf of the plaintiffs.

Upon objection of the defendant the court also refused to give Instruction No. 1, offered by the plaintiff, which would have told the jury that in assessing the damages of the plaintiff Frank Pygman the jury could consider the injury suffered by him, including physical pain and mental anguish endured, if any, and medical and hospital bills incurred by him, and any loss of income or wages. The instruction was refused on the ground that the only pain and disability experienced by the plaintiff Frank Pygman and the only expenses incurred and wages lost by him resulted from the hernia which, as an element of damages, had been stricken from the evidence.

The principal error assigned by the plaintiff Frank Pygman involves the action of the circuit court in striking the evidence relating to the cause of the hernia and the damages resulting from it.

It was the contention of the defendant, which was accepted by the circuit court, that in order to render admissible and sufficient the medical testimony of the surgeon who performed the operation, the surgeon was required to conclude with reasonable certainty that the collision in which the plaintiffs were involved was the proximate cause of the hernia. This contention was not well founded....

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