Utley v. Southern Metal Products Co., 730
| Decision Date | 18 November 1959 |
| Docket Number | No. 730,730 |
| Citation | 116 So.2d 28 |
| Parties | Eva UTLEY, Appellant, v. SOUTHERN METAL PRODUCTS CO., Inc. and Connie Henderson, Appellees. |
| Court | Florida District Court of Appeals |
Paty, Downey & Daves, West Palm Beach, for appellant.
Jones, Adams, Paine & Foster, West Palm Beach, for appellees.
Eva Utley and her husband Willard Utley filed their separate appeals from jury verdicts rendered in a negligence action. Eva Utley received a verdict in the amount of $5,000, and her husband received nothing. Both of them appealed and their appeals were consolidated for argument.
The plaintiff Eva Utley has assigned eleven points, but on ten of these we find no reversible error. The first point, relating to the inadequacy of her verdict, has given us more concern. From the record it appears that the accident giving rise to this action occurred at about 7:30 P.M. on October 7, 1956, a dark, rainy, and windy night with gusts of rain and wind. The plaintiffs were driving south on Military Trail in Palm Beach County. Willard Utley was driving, and his wife Eva Utley was riding beside him on the front seat. The car in which they were riding was owned by Eva Utley. Truck owned by the defendant Southern Metal Products Co., Inc. had been operated by one of its employees, Connie Henderson, and was at the time of the accident parked in the south bound lane of traffic, headed in a northerly direction, with two flat tires. Flares were posted, although the testimony of witnesses varies as to their distance from the truck. The headlights of another car going north just before the impact momentarily blinded Willard Utley. When Utley first saw the flares and the truck, he was too close to them to bring his car under control and stop, and hence the accident occurred.
In the complaint were allegations of negligence on the part of the defendants. The defendants denied negligence and charged both the plaintiffs with contributory negligence.
Eva Utley is a housewife and at the time of trial was fifty-five years of age with a life expectancy of 17.78 years. In the accident she received a deep cut on the forehead requiring several stitches, a crushing of her hip socket, and injury to her knee. At the time of trial she had a shortening of one leg and a bad hip necessitating her wearing a shoe raised three-fourths of an inch. Also she received injury to her right arm and hand so that her hand shook constantly. She developed atrophy in her right arm muscle and the right thigh muscle. She had an abduction of her right hip of thirty degrees and an abduction of her left hip of forty-five degrees. She also had a limitation of motion of the internal rotation and external rotation of the right hip, which had apparently caused a certain amount of arthritis. One doctor testified that she had fifty per cent permancent partial disability to her right hip, while another doctor testified to seventy-five per cent. She had suffered great pain and, according to the medical testimony, she still suffered pain in her hip and knee. Her hospital and medical espenses in the amount of $2,024.34 were paid by her husband and were not included in her suit. There is much testimony going to the point of whether plaintiff, by refusing to have an open reduction of the hip on account of her religious beliefs, contributed to the severity of her injury. The medical testimony going to this point shows that two courses of medical treatment were open to plaintiff, either an open reduction or conservative treatment. Her attending physician testified in part as follows:
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