Walker v. Henderson
| Decision Date | 26 September 1963 |
| Docket Number | 5 Div. 765 |
| Citation | 156 So.2d 633,275 Ala. 541 |
| Parties | James B. WALKER, Jr., pro aml, v. Mrs. Guy HENDERSON. |
| Court | Alabama Supreme Court |
Hooton & Hooton, Roanoke, and Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Knox, Jones, Woolf & Merrill, Anniston, for appellee.
This is an appeal by the plaintiff below from an order overruling plaintiff's motion for a new trial because of inadequacy of the damages assessed.
The suit below sought damages because of the alleged negligence of the defendant in driving a car into a horse being ridden by the plaintiff on a public road.
The jury returned a verdict in favor of the plaintiff and assessed his damages at $2,000, and judgment was entered pursuant to the verdict.
The verdict and judgment being in favor of the plaintiff, the only question involved in this appeal is the action of the lower court denying plaintiff's motion for a new trial because of the inadequacy of the damages. This being so, we will set forth only so much of the evidence as touches upon the nature and extent of the plaintiff's injuries.
The plaintiff was seventeen years of age at the time of the accident. Upon being taken to the Randolph County Hospital, he was attended by Dr. G. C. Ussery, whose qualifications as a physician and surgeon were admitted.
Dr. Ussery testified that when he first saw the plaintiff in the emergency room at the hospital, his blood pressure was 90/8, and he had a mild cerebral concussion. As to the injuries found by Dr. Ussery, we excerpt the following from Dr. Ussery's testimony:
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'He had contusion of the muscles of the back and the right shoulder * *.
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'Yes, the right leg is atrophied, it is just shrunken up.
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The doctor further testified that the plaintiff would suffer pain from his injuries, some days the pain might be light and on other days it might be severe.
In the doctor's opinion the injuries to the plaintiff are permanent, and there has been no improvement in the past twelve months. In fact, the plaintiff's condition is worse now than it was twelve months ago. In addition to Dr. Ussery, the plaintiff has been seen by Drs. Fagan and Taylor in Anniston, Dr. Agouri of Columbus, Georgia, and Dr. Galbraith in Birmingham, and by Dr. Norred, a Chiropractor.
As to his physical condition and suffering since his injuries, the plaintiff testified as follows:
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Mr. Walker, father of the plaintiff, testified that before the accident the plaintiff drove a school bus as a substitute driver, but since the accident 'he can't hardly get about' and 'hasn's done a thing.' We note here that no evidence was introduced tending to show the plaintiff's earnings, if any, as a substitute school bus driver, though M. B. Wallace, Superintendent of Schools for the City of Roanoke, testified that the plaintiff drove a school bus 'quite a bit.'
The plaintiff's original hospitalization was for 16 days. Subsequent stays in the hospital were necessary, and altogether the plaintiff has spent some 63 days in the hospital because of his injuries.
In addition the plaintiff has had to visit Dr. Ussery some 16 times, has made five trips to Anniston and Birmingham, and two trips to Columbus, Georgia, for medical consultation. The costs of these trips were not shown, the plaintiff testifying he did not know what his traveling expenses were.
The plaintiff's hospital and medical bills at the time of trial totaled $1,656.31. Subtracting this out of pocket money from the $2,000 assessed as damages, leaves $343.69 as the amount of damages assessed for the injuries, permanent physical impairment and pain and suffering.
Section 276, Title 7, Code of Alabama 1940, provides that motions for new trials may...
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