Welter v. Curry

Decision Date19 July 1976
Docket NumberNo. 75--371,75--371
Citation260 Ark. 287,539 S.W.2d 264
PartiesRosie K. WELTER, Appellant, v. James CURRY et al., Appellees.
CourtArkansas Supreme Court

Wright, Lindsey & Jennings, Little Rock, for appellant.

Gordon & Gordon, P.A., Morrilton, for appellees.

FOGLEMAN, Justice.

Appellees brought this action to recover damages arising from a collision between an automobile driven by appellant Rosie K. Welter and a Honda minibike operated by James Curry, Jr., son of James Curry and Sharon Kay Curry. The Incident occurred around 5:00 p.m. on October 6, 1973 on the paved portion of Highway 95 near Ramsey's Grocery, about four miles north of Morrilton. James Jr. was ten years of age at the time and his five-year-old sister was riding on a seat behind him. Both children suffered injuries and the bike was virtually destroyed. The evidence as to exactly how the collision occurred is in hopeless conflict. The two children had come from the Curry dwelling about one-half mile west of Highway 95, on a dirt road for the purpose of putting air in the tires of the minibike at Ramsey's Grocery. The collision occurred as they started to cross the highway on their return journey. Most of the conflict in the testimony is in the different versions as to the point of approach to the highway by young Curry and the distance he had travelled toward the west from the grocery when he was sighted by appellant and when the children and minibike were struck by her automobile.

Appellant raises five points for reversal. We find that the judgment must be reversed as to James Curry, Jr. on two of these points.

We find error in instructions given the jury. First there was error in including among the elements of damages the third alternate form of AMI, Civil, 2213(a). This form is to be used only when there is evidence that there is permanency of injuries. See Note on Use, AMI, Civil, 2202. That evidence must tend to establish permanency with reasonable certainty. It must not leave the jury to speculation or conjecture. St. Louis, I.M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104; McCord v. Bailey, 195 Ark. 862, 114 S.W.2d 840; Missouri Pacific Transp. Co. v. Kinney, 199 Ark. 512, 135 S.W.2d 56; Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869.

There is no doubt that James, Jr. suffered serious injury. He was treated by Dr. Thomas Hickey at Morrilton and Dr. John Lohstoeter, an orthopedic surgeon, in Little Rock. He was put in traction for seven days at St. Vincent Infirmary in Little Rock, where he was a patient for exactly three weeks. Prior to discharge he was placed in a body cast. It was removed March 1, 1974, after which he remained in bed at home for about ten days to two weeks. Thereafter, it was necessary that he use crutches until April 23, 1974. At the time of the trial, his right leg was smaller and shorter than his left, he walked with a limp, and was wearing a special pair of shoes with a five-eighths inch sole and a one-fourth inch heel for the right foot. Dr. Lohstoeter had prescribed and exercise regimen for him to follow for a period of four to six years. At the time of the trial, his mother testified that he had regained virtually all of the strength of his right leg, but that he complained intermittently of pain and trouble with it. The child said that he had not regained the strength of that leg. He lost a year in school. A tutor was employed for him for a time. He will be checked periodically by Dr. Lohstoeter until the end of his growth period. At the time of the trial, Dr. Lohstoeter had not seen him since April 17, 1975.

Dr. Lohstoeter testified for appellees on direct examination substantially as follows:

James had suffered a transverse split fracture of the right thigh bone at the upper and middle one-third junctions. This involved the bond between the hip and the knee. There was a shortening of the leg because of muscle spasms. Traction was utilized to adjust the bone fragments into an optimum position for healing. In a youth of James' age, bone growth is stimulated by a fracture, so it was necessary to allow some shortening of the leg to compensate for the extra growth. James would have over six years for this growth of one to one and one-fourth inches to take place. The shortness is to be anticipated for one and one-half to two years. On examination on January 28, 1974, James' condition was very stable and very good. X-rays showed good healing and good maintenance of the casted position. When the cast was removed, there was good healing of the fracture elements. Muscle tone was definitely wasted away. On March 15, 1974, James was progressing quite well. He still had some stiffness in the right hip, because of associated scarring and strain elements. On April 23, 1974, when the crutches were discarded, James was put on a full weight bearing program for the next four weeks, to be fully realized during the last week of May or the first week of June. He still had a great deal of wasting away of muscles and had not learned to protect the ligaments at his knee, ankle and hips. The shortness of the leg causes a pelvic tilt. To correct this, the placement of a heel lift was recommended on June 7, 1974. X-rays of the right foot revealed no damage, but there was a softening of the bones which accompanies immobilization and disuse. On August 12, 1974, the boy was complaining of pain in the right leg when he walked on it a great deal and occasionally when he did not walk. There was laxity in the ligaments. The doctor stressed the necessity for diligent application to the exercise routine. This admonition was repeated on October 24, 1974. On January 7, 1975, James displayed better walking and stance pattern. While quadriceps atrophy was still present in the right leg, the muscle tone was building and it was evident that the boy was applying himself diligently. His condition was quite good on April 7, 1975, even though he still displayed some front thigh muscle smallness and loss of tone by comparison with the left side, but there had been a fifty per cent correction which was 'roughly par for the course.' His right knee was quite stable and there was not a great deal of laxity there, even though there were so-called noises when he was bending it back and forth. His gait pattern was good and without stiffness. The bone fracture was totally healed, stable and molded, and there was no rotational deformity to any extent. The shortness was still present, but it will be overcome in five or six years. His right leg had returned to equal, if not dominant position. There is no reason why he should not return to normal activities. His dysfunction now existing will regress and lessen with the passage of time and he will, in the doctor's opinion, return to full function without any disability to the leg. A limited degree of normal activity for his age group was recommended. He should withstand tackling for thighbone and fracture elements, but he is advised not to play football where he may do injury to his knee because he does not have muscle in the front thigh to take the buffing around the knee. He is more restricted in normal restriction, inflection and extension capabilities at the knee than the doctor would anticipate him to be. Improvement over the next two years is expected and when he reaches full growth pattern, there will be no relative shortening so far as the right leg, of which he now has good use, is concerned. This can only be determined over a three to six year span. The doctor was hopeful that in five to six years, James will have absolutely normal use of his leg. The rigid exercise program to achieve this is an abnormal load for the youngster to bear. It requires him to exercise ten to fifteen minutes three or four times a day to maintain his continuity to normalcy. The doctor anticipated a very good result.

James is to return to the doctor within one year from the last examination and when he is fourteen years of age, a scanogram will be performed to measure the thighbone and tibia. This will probably be needed again when he is sixteen years of age and also when he is seventeen or eighteen. There was no significant cross-examination of the doctor.

Clearly, there is no substantial evidence of permanent injury. The jury could have considered the nature, extent and duration of the injury under the first alternative of AMI, Civil, 2213(a).

The evidence in this case is readily distinguishable from that in Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565; Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526; Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W.2d 889 and Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W. 242, relied upon by appellees. In Bailey, there was a brain injury to the child there involved, and, at the time of the trial, she had a fear of riding in an automobile, had trouble with her speech, and still suffered headaches. She could not carry on a conversation without getting tangled up with her words and having to stop.

In Belford the injured party had suffered a personality change, was unable to perform certain movements without pain, was, after twenty months, still taking eight muscle relaxant pills per day, and would have difficulty obtaining employment where a physical examination was required. In Gross, the defendant rather than the plaintiff requested an instruction making the permanency of the injury a jury question. In Mitchell, there was evidence of permanency of injuries and the question there was excessiveness of the verdict rather than sufficiency of the evidence to make a jury question on permanency of the issues.

In still another case, Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840, the nature of the injury, a fracture of the skull at the base, was held to be sufficient evidence of permanency to make a jury question. The testimony of the treating physician was that this injury, with the accompanying long period of...

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