Simmons v. Boyd

• Decision Date: 10 March 1958
• Docket Number: No. 4734,4734
• Citation: Simmons v. Boyd, 199 Va. 806, 102 S.E.2d 292 (1958)
• Parties: RAYE HOLT SIMMONS v. BERNARD BOYD. Record
• Court: Virginia Supreme Court

Page 292

102 S.E.2d 292

199 Va. 806

RAYE HOLT SIMMONS v.BERNARD BOYD.

Record No. 4734.

Supreme Court of Appeals of Virginia

March 10, 1958.

Frank L. McKinney(Henry W. McLaughlin, Jr., on brief), for the plaintiff in error.

John W. Carter(Carter & Carter, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Raye Holt Simmons, who was Raye L. Holt at the time this action was instituted and at the time of the first trial, filed her motion for judgment against Bernard Boyd.She was a guest passenger in an automobile operated by Paul Simmons, whom she later married, which collided with a vehicle driven by Boyd.The trial resulted in a verdict for $20,000.Over objection of plaintiff, the court sustained defendant's motion to set aside the verdict and awarded a new trial on all issues.At the second jury trial plaintiff was awarded the sum of $6,500.Motions of plaintiff and defendant to set aside that verdict were overruled and final judgment was entered thereon.Plaintiff, by this appeal, seeks to have the judgment reversed and the verdict of the first trial reinstated.

The accident occurred on November 4, 1955, between 5:10 P.M. and 5:30 P.M. on Route 659 about 8 miles west of South Boston.The road runs east and west, is black top and has no center markings.It is straight and was dry at the time.The hard surface is approximately 17 feet wide and there are dirt shoulders about 3 feet wide.

Paul Simmons was operating a 1941Ford Tudor sedan proceeding west, and defendant was operating a 1942 Dodge pickup truck traveling east.Simmons said that as he passed over a slight rise in the road he noticed Lorenzo Caldwell leading a cow along the north shoulder about 75 feet from him.Simmons turned his vehicle slightly to his left, possibly a little beyond the center of the highway, to safely pass.As he passed and was in the act of turning back to the right, or north, side he observed defendant's truck approaching.The truck began to skid and headed towards him.Simmons continued to bear to his right and proceeded towards the field.The two vehicles collided on the north shoulder of the highway.The Simmons car skidded approximately 45 feet before the impact.All of its tire marks were to Simmons' right of the center of the road.Defendant's truck laid down skid marks of about 51 feet.Defendant stated he saw there was going to be a head-on collision so he applied his brakes and his left front wheel locked which 'pulled' him across the road into the westbound portion thereof.

Plaintiff, riding in the front seat of the Simmons car, was thrown against the dashboard and her head struck the windshield.She was taken to a hospital for treatment of the injuries she sustained.

Plaintiff's assignment of error is that the trial court erred in setting aside the verdict for $20,000 rendered at the first trial and in granting a new trial.

Among cross errors assigned by defendant are the following:

The court erred (1) in making a part of the record two letters, dated June 21 and 27, 1956, which it addressed to counsel in regard to setting aside the verdict; (2) in allowing the introduction of evidence from the World Almanac as to the hour of sunset at the longitude and latitude of Washington, D.C., and (3) in permitting an automobile mechanic to qualify as an expert witness and testify as to the reactions of a motor vehicle with defective brakes.

The pertinent parts of the court's letter dated June 21, 1956, follow:

'After careful consideration it is my opinion that the verdict in the caption case should be set aside and a new trial granted.

'The extent of Mrs. Holt's injury, the amount of the jury's verdict, the short time the jury was considering their verdict, suggests that the jury may have been influenced by the mention of insurance in the case.

'I do not believe any of the other errors mentioned by the defendant are prejudicial, if there be other errors.'

In response to a letter from plaintiff's counsel requesting the specific grounds upon which the verdict was set aside, the court by letter, dated June 27, 1956, stated in part:

'Since the caption suit is still pending and is to be tried anew I do not believe it proper for me to bind myself further than I did in my letter of the 21st.The new trial is granted on all issues.

'All the order at this time needs to state is: On motion of the defendant, and for reasons satisfactory to the court, the verdict of the jury is set aside and a new trial granted on all issues.To which action of the courtplaintiff excepts.'

What is said in Bostic v. Whited, 198 Va. 237, 238, 93 S.E.2d 334, is applicable to the instant case:

'Under these circumstances it is the practice of appellate courts to consider the record and to pass upon errors in the order committed, and to reverse the judgment of the trial court for material error not waived whereby the party appealing is aggrieved.This is done without looking into subsequent proceedings.Jones v. Old Dominion Cotton Mills, 82 Va. 140, 3 Am. St. Reports 92.Thus if it is discovered that the court erred in setting aside the verdict in the first trial either because of the mistaken belief that the verdict was contrary to the evidence or for some other supposed error committed, the appellate court will annul the proceedings subsequent to the first verdict and enter judgment on it.1 M.J., Appeal and Error, § 282, pp. 714,715;Burks Pleading and Practice, 4th Ed., § 427, pp. 834, 835;Brann v. F.W. Woolworth Co., 181 Va. 213, 24 S.E.2d 424. 'Judge v. Burton, 198 Va. 664, 666, 96 S.E.2d 120.We turn therefore to a consideration of the evidence and rulings at the first trial.

Plaintiff had been referred for examination by her physician, Dr. N. M. Ewell, Jr., to Dr. Walter O. Klingman, head of the Department of Neurology and professor of Neurology and Psychiatry at the University of Virginia Medical School.Dr. Klingman testified that he examined plaintiff on December 23, 1955, and found she had an oscillation of the eyeball from side to side coupled with a rotary element, which is commonly called nystagmus.He stated these movements of the eyeball are abnormal, automatic and not under voluntary control.His examination further revealed that she had a slight disturbance of her equilibrium and she could not perform certain standard tests considered to be normal.She had a tendency to fall and sway towards one side, which was intensified when she stood on one foot and then on the other.He further testified:

'Q.What is the relation you can give to this injury and me of this very unusual eye condition and her feeling of falling backwards or loss of equilibrium?

'A.Well, in anyone who presents a history where there has been a head injury sufficient to cause a disturbance of consciousness or unconsciousness and then notes from that time on or within a relatively short period of time symptoms of this character and where these findings are then made we consider that as being evidence that there has been some disturbance in the function of this particular mechanism in the mid brain that normally should not exist and my association was with the story of having had a head injury and not being able to define anything from her past history that she had been suffering from any similar complaints prior to the accident.'

While he considered plaintiff's injury to be mild or moderate, he could not state, and did not think anyone could, whether her condition would be permanent.In general, he said, these injuries tend to disappear and become less pronounced between six and twelve months after injury, but 'there is no way of predicting whether it will be maintained as a permanent defect. 'He also said the longer the condition persists the possibility is greater that it may persist permanently.He stated he would not advise plaintiff to operate an assembler machine, which she was accustomed to operating in the shoe factory where she had been employed.

Dr. Richard H. Ames, a neurosurgeon in Greensboro, North Carolina, who examined plaintiff on March 9, 1956, testified on behalf of defendant.His positive findings were identical with those found by Dr. Klingman in his examination on December 23, 1955.He said he was unable to find objective evidence of organic after effects of her injury which would cause appreciable disability, and he indicated such objective abnormalities were probably of long duration.He was asked on cross examination:

'Q.And that Mrs. Holt has no way to normally expect she will get any better because of the fact that they were a constant condition from December to March?

'A.Speaking again purely from the findings that is probably correct.'

Erna Shotwell, plaintiff's school teacher, who had known plaintiff most of her life, stated that she was one of the most active and healthy girls in school.

Jesse Norton Glenn, plaintiff's employer said he had not noticed any indication of her suffering from dizziness or unsteadiness on her feet prior to the accident.

Plaintiff testified that sometimes when she arose from a seated position she had to steady herself by holding on to the chair; that frequently when she saw an object passing she became nauseated and had a sensation of falling forward; that she had severe headaches; that she had a sensation of falling backwards on an average of once every two or three days and that she had sleepless nights.She further testified that she did not have any sensation of dizziness and was a healthy person before the accident and that her honest opinion was her condition, if anything, had become progressively worse.

Mrs. Hallie Simmons said plaintiff had been living with her for approximately two years and that prior to the accident her health was that of a normal person.She corroborated plaintiff's testimony about her condition subsequent to the accident.

In Colonna Shipyard v. Dunn, 151 Va. 740, 766, 145 S.E. 342, it is...