Rayfield v. Lawrence, 7537.
Decision Date | 03 March 1958 |
Docket Number | No. 7537.,7537. |
Citation | 253 F.2d 209 |
Parties | Richard R. RAYFIELD, Appellant, v. Forrest LAWRENCE, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
Braden Vandeventer, Jr., Norfolk, Va. (Vandeventer, Black & Meredith, Norfolk, Va., on the brief) for appellant.
Stanley J. Bangel, Portsmouth, Va. (Bangel, Bangel & Bangel, Portsmouth, Va., on the brief), for appellee.
Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and STANLEY, District Judge.
This is an appeal from a judgment entered in the United States District Court for the Eastern District of Virginia, Norfolk Division, on a jury verdict against the defendant, Richard Rayfield, for personal injuries growing out of a collision between an automobile being operated by the defendant and an automobile being operated by one Thomas J. Briody, Jr., in which the plaintiff, Forrest Lawrence, was a passenger. Another sailor, James D. O'Neil, and a friend of Lawrence, was also a passenger in Briody's automobile and received serious injuries. O'Neil also brought suit against the defendant, and his suit was consolidated for trial in the District Court with the suit brought by plaintiff, since both involved a common question of law and fact. Both suits were appealed and argued in this court. Before the appeal was decided a stipulation of compromise in settlement of O'Neil's suit was filed with this court and the appeal was thereupon dismissed under Rule 23, 28 U.S.C.A., and in accordance with said stipulation of compromise and settlement.
The principal contention raised by the defendant relates to an instruction given the jury by the District Judge to the effect that if it found the defendant liable it could consider, among other elements of damage, the fair and reasonable value of the hospital and medical services rendered to the plaintiff at the Naval Hospital in Portsmouth, Virginia, even though plaintiff may not actually have expended any money for said hospital and medical services. The contentions are also made that the District Judge should have submitted an issue of contributory negligence and that the verdict returned by the jury was excessive. There is no merit to any of these contentions.
At approximately 12:30 o'clock on the morning of May 26, 1956, Thomas J. Briody, Jr., a sailor in the United States Navy, left Kiptopeke Beach, Virginia, bound north on Route 13 towards Audubon Park, New Jersey. Plaintiff accompanied him as a passenger, sitting on the front seat beside Briody. As Briody proceeded north on Route 13, he followed a pick-up truck towing a house trailer. A short distance from the ferry terminal at Kiptopeke Beach, the lights on the rear of the trailer blinked and a hand signal was given, both indicating a left turn. As the truck-trailer ahead of the Briody car started turning to the left, Briody brought his car to a complete stop on the right side of the highway to give the truck-trailer an opportunity to complete its left turn. While parked on his right side of the highway, awaiting the turn of the truck-trailer, Briody took a pack of cigarettes from his shirt and put them over the sun visor and in so doing it was necessary for him to momentarily take his eyes from the highway. On returning his eyes to the road ahead, he witnessed an automobile, later determined to be driven by the defendant, Rayfield, in his right lane, which soon came into collision with his automobile.
Route 13 at the point of collision is a two-lane concrete highway with shoulders of some six to eight feet in width on either side, and runs in a north-south direction. The road into which the truck-trailer was entering runs west from Route 13. The speed limit on Route 13 in the area of the collision was 25 miles per hour, and Rayfield was mindful of this fact.
The state trooper testified that Rayfield stated to him that he was driving somewhere between 50 and 60 miles per hour immediately before the collision, and Rayfield testified at the trial that he was traveling at least 45 miles per hour. Rayfield further testified that when he first saw the truck turning into his lane he applied the brakes of his automobile and swerved to the left side of the road in order to avoid a collision with the truck-trailer. He skidded his car 58 paces or 150 feet across the dry pavement and struck the Briody car with sufficient force to demolish his own vehicle. There was nothing in the weather conditions or otherwise to obstruct visibility. Rayfield testified that he possibly could have stopped on his right side of the highway before colliding with the truck-trailer had he been operating his automobile within the speed limit.
Lawrence had no ownership or control over the car in which he was riding. He had been a passenger for less than three minutes when the collision happened, during which time the speed of the Briody car had been between 10 and 15 miles per hour. O'Neil, the other passenger in the Briody car, testified that the smash came unexpectedly and without notice, stating all of a sudden he saw blinding headlights in front of the Briody car and then the crash occurred. Lawrence was unable to recall the details of the accident because of brain injuries he sustained.
At the time of the institution of these actions, both Richard Rayfield and Thomas Briody, Jr. were named defendants. Both defendants filed answers denying negligence but neither set up a counterclaim or cross-claim against the other. At the conclusion of the opening statements to the jury, the District Judge granted a motion dismissing the action as to the defendant Briody "on the ground no negligence has been stated by any counsel in their opening statement as to any act of negligence or possible act of negligence as to the defendant Briody." The plaintiff did not oppose the entry of this order, but the defendant Rayfield noted an exception to the ruling of the court. This exception by the defendant has been abandoned as he does not raise the point on appeal.
Lawrence suffered serious and permanent injuries as the result of the accident. He was admitted to the Portsmouth Naval Hospital shortly after the accident for the treatment of his injuries, and was confined to said hospital for 83 days. He sustained a cerebral concussion causing him to be unconscious for several hours following the accident. In addition, he sustained multiple lacerations of the scalp, forehead, face and the small finger of the right hand, requiring over 60 stitches to close his wounds. He also received fractures of the right radius and ulna, the two bones in his right forearm, and of the astragalus in his right foot, which is the bone in the ankle responsible for transmitting the weight of the body from the lower leg bones into the foot. His injuries were painful, but due to the head injury he received, he could not be given sedation because of possible brain injury, the extent of which was not known at the time. The fracture of his arm was treated by his arm being placed in a long arm cast and suspended in traction on the side of the bed, and the fracture of his ankle bone was treated by a short leg cast beginning just below the knee and including the foot. After his wounds healed, they left a three-inch scar starting on the right forehead and going into the scalp, another two-inch scar on the right forehead, a ¾-inch scar on the right upper eyelid, a 1½-inch scar on the right cheek, three scars on the right side of his face, and a one-inch scar across the nose, all of which are very disfiguring. The laceration of the scalp was so deep that it caused a small chip fracture of the skull. All these scars are of a permanent nature. He has considerable limitation of motion in his wrist which is permanent. He has tenderness of the ankle over the fracture site and pain in his ankle and foot which is permanent, with a 20% permanent loss of ability to turn his foot in and a 50% permanent loss of eversion because of the contracture of the finger and the injury to his wrist, Lawrence has a 32% permanent loss of grip in his right hand. The fracture to his astragalus in the foot and ankle has caused traumatic arthritis with resultant pain. This also caused spur formation which will get worse in the future. Lawrence was a barber before the accident, and since the accident he has been unable to perform this work. As a result of the injury to his foot and wrist, his physician testified that he would be unable to do certain work, and if he continued barbering it would have to be in a limited capacity. He has since taken a job making from $15.00 to $25.00 a week less than his average earnings as a barber.
The principal contention of the defendant is that the District Court erred in allowing the jury to consider the reasonable value of the medical and hospital services furnished the plaintiff at the Naval Hospital in Portsmouth, even though plaintiff did not actually expend any money for such services. On this point, the District Judge instructed the jury as follows:
We think this is a correct statement of the law. In support of his contention that the charge is erroneous, the defendant cites Koons v. Nelson, 113 Colo. 574, 160 P.2d 367, and United States v. Gaidys, 10 Cir., 194 F.2d 762. These cases...
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