Stoltz v. Stonecypher, 14028

Citation336 N.W.2d 654
Decision Date20 July 1983
Docket NumberNo. 14028,14028
PartiesMarcella M. STOLTZ, Plaintiff and Appellant, v. Russell STONECYPHER, Defendant and Appellee.
CourtSupreme Court of South Dakota

Curt Ireland, Rapid City, for plaintiff and appellant.

Edward C. Carpenter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee.

FOSHEIM, Chief Justice.

This is a personal injury action arising out of an automobile accident in Rapid City. Plaintiff appeals from the order denying her motion for a new trial on the grounds the $10,000 verdict was inadequate. We affirm.

In determining whether the trial court abused its discretion in denying an application for a new trial, we view the evidence in the light most favorable to the verdict. Hanisch v. Body, 77 S.D. 265, 90 N.W.2d 924 (1958). The verdict, although in plaintiff's favor, was for less than she had claimed.

The accident occurred on the evening of October 20, 1981, at the controlled intersection of Omaha Street and 8th Street. Plaintiff described the weather as raining, mixed with snow. It was "very dark and glary." She was operating her windshield wipers while proceeding east on Omaha Street. Plaintiff entered the intersection on a green light and collided with defendant's vehicle. She did not see the defendant's car prior to the collision.

The Defendant was eighteen years old at the time of the accident. He and his younger sister were on their way home, proceeding west on Omaha street, when the accident occurred. Defendant testified he stopped behind a car at the intersection in the left hand turning lane. The car ahead waited for oncoming traffic to pass and then completed a left hand turn. Defendant thereupon pulled into the middle of the intersection, waited for an oncoming vehicle to pass, looked for traffic, and started his left turn on a yellow light. Some eastbound traffic had approached the intersection and stopped before the defendant commenced his turn. Defendant testified that, in turning, he first observed plaintiff's vehicle before it entered the intersection. It appeared to the defendant that plaintiff's vehicle was traveling at approximately 40 m.p.h. and could have been accelerating. The impact occurred about halfway through the intersection in the right eastbound lane of Omaha Street which is a four lane highway.

Dr. Baries, the physician in charge of plaintiff's treatment at the hospital, noted that "aside from a fractured patella, I doubt if she has significant findings. She tends to be quite an anxious person." In the discharge summary the findings were of a fractured patella and abdominal wall contusions. Both Dr. Baries and Dr. Berkebile, the treating orthopedic surgeon, testified that during her hospitalization and follow up treatment Mrs. Stoltz made no complaints to them relating to neck or back injuries. In his initial physical examination Dr. Berkebile palpated the neck and back areas and obtained no subjective or objective evidence of any problem.

Plaintiff testified that she had numerous problems in addition to the nondisplaced fracture of the right patella and the abdominal soreness, all of which were experienced immediately after the accident and continued up to the time of trial. The problems included weakness in one arm and pain in her arms, left shoulder, kidney, hips, collarbone, neck and back. According to plaintiff, she failed to reveal these problems and symptoms to Drs. Baries and Berkebile since they did not specialize in treating such complaints. She also stated that she preferred to be treated by a chiropractor because orthopedic surgeons always want to operate.

Dr. Berkebile testified that plaintiff sustained a nondisplaced fracture of the right patella which has resulted in a 5% permanent-partial disability of the right lower extremity. He further testified that the chondromalacia he later diagnosed was not related to the accident in question. Dr. Baries testified that in his opinion plaintiff did not sustain a neck injury as a result of this accident. Dr. Schwietert testified, however, that plaintiff suffered a 40 to 50% permanent disability of the whole person as a result of the accident.

A new trial will not be granted because of inadequate damages merely because the court believes the verdict smaller than it should be. In tort actions involving personal injuries the amount of damages is peculiarly a question for the jury. Hanisch, supra. This court has said "the verdict of the jury will not be set aside except in extreme cases as where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law by which damages in the particular case were to be measured." Simons v. Kidd, 73 S.D. 306, 311, 42 N.W.2d 307, 309 (1950); See also : Hanisch, supra; Tufty v. Sioux Transit Co., 70 S.D. 352, 17 N.W.2d 700 (1945).

An application for a new trial is addressed to the sound judicial discretion of the trial court and the only function of this court is to determine whether that discretion has been abused. Thormahlen v. Foos, 83 S.D. 558, 163 N.W.2d 350 (1968); Johnson v. Olson, 71 S.D. 486, 26 N.W.2d 132 (1947). This includes a verdict in a personal injury action for the amount of medical specials only, as such verdicts may be explainable and sustainable. Gould v. Mans, 82 S.D. 574, 152 N.W.2d 92 (1967). The verdict in this case approximated the special damages claimed.

It is the rule, however, that orders granting new trials stand on firmer ground than orders denying them as they are not conclusive or decisive of any rights or issues. Jensen v. Miller, 80 S.D. 384, 124 N.W.2d 394 (1963).

Viewing the evidence most favorable to the verdict, we cannot conclude as a matter of law that the plaintiff was not guilty of slight negligence in comparison with the negligence of the defendant. SDCL 20-9-2. 1 The jury was instructed as to the standard of care required of drivers by SDCL 32-25-3 2 and could find that she was driving at a speed greater than was prudent considering visibility, weather conditions and surface of the highways. Questions relating to negligence and contributory negligence are questions of fact for determination by the jury in all except the rarest of instances. Ricketts v. Tusa, 87 S.D. 702, 214 N.W.2d 77 (1974); Myers v. Quenzer, 79 S.D. 248, 110 N.W.2d 840 (1961); and Peterson v. Denevan, 177 F.2d 411 (8th Cir.1949). Since the trial court did not err in submitting the issue of negligence to the jury, it was their province to reduce plaintiff's damages in proportion to her contributory negligence. We...

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  • Roth v. Farner-Bocken Co.
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    ...or the jury has palpably mistaken the rules of law." Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D. 1983)). "A verdict should only be set aside if the jury's conclusion was unreasonable and a clear illustration of its failure to imp......
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