Williams v. Penn Line Service, Inc.

• Decision Date: 03 July 1962
• Docket Number: No. 12149,12149
• Citation: 126 S.E.2d 384,147 W.Va. 195
• Court: West Virginia Supreme Court
• Parties: Clema WILLIAMS v. PENN LINE SERVICE, INC., a Corp. et al.

Page 384

126 S.E.2d 384

147 W.Va. 195

Clema WILLIAMS v. PENN LINE SERVICE, INC., a Corp. et al.

No. 12149.

Supreme Court of Appeals of West Virginia.

Submitted May 15, 1962.

Decided July 3, 1962.

Syllabus by the Court.

A jury is better able to judge of the circumstances of a case, the weight of the testimony, and the peculiar hardships and aggravations attendant upon an injury, and its verdict for damages for personal injury, which is not so excessive as to indicate, as a matter of law, passion, prejudice, partiality, mistake, or lack of due consideration, will not be set aside by this Court on that ground.

Breckinridge & Brown, Benjamin P. Brown, Jr., Summersville, Steptoe & Johnson, Stanley C. Morris, Charleston, for appellants.

Ernest V. Morton, Jr., Webster Springs, Brooks B. Callaghan, Richwood, for appellee.

BROWNING, Judge.

Plaintiff, Clema Williams, instituted this civil action in the Circuit Court of Webster County to recover damages for personal injuries sustained when she was struck by a truck owned by the corporate defendant, Penn Line Service, Inc., hereinafter sometimes referred to as Penn, and driven by the individual defendant, Herbert Ware. The jury returned a verdict in favor of the plaintiff and against both defendants in the amount of $100,000.00 and judgment was entered thereon. Defendants thereafter moved to set aside the judgment and award them a new trial which motion was overruled on November 27, 1961, to which judgment this Court granted an appeal and supersedeas on December 11, 1961.

The accident occurred at approximately 11:00 A.M. on April 1, 1960, on State Route 20 on what is known as Baker's Island in the town of Webster Springs. Plaintiff, in testifying, stated that: she had emerged from a building on the west side of the highway, waited for traffic to pass, then walked to the end of the building and crossed the highway to the opposite berm; and she then began walking north along the berm until she heard a noise behind her, looked back and saw defendants' truck but so close she could not avoid being struck. She also stated that 'As I come out of the building I noticed this red truck and it looked like it was getting ready to go toward Cowen [south]. I thought it went that way.' A statement taken from her in the hospital by a state trooper is as follows: 'I had just come out of the power company and crossed the road and was on the dirt part. I saw the truck backing and I thought it was going to back out into the road. I started walking on toward Webster Springs. I turned and the truck was right on me. I tried my best to get out of the way. The rear of the truck is what knocked me down. The transmission hit me. I was under the truck near the middle when it stopped.'

On the east side of the highway, where the accident occurred, was an unpaved berm at least twelve feet in width extending north in front of the office building of Penn, a barber shop and a vacant lot, used by Penn and its employees as a parking lot, which lot was enclosed by a post and cable fence with an opening for the ingress and egress of vehicles. An automobile was parked at an angle near the common corner of the barber shop and parking lot. The truck which struck the plaintiff was a red 'pick-up' truck with the rear covered over with aluminum and with tool bins along the sides leaving a 'tunnel' about 36 inches wide. It was equipped with side rear-view mirrors but the individual defendant, Ware, stated: '* * * the best view I could get was through the back.' A similar truck, painted all red, arrived at the Penn office as Ware was leaving. Ware entered his truck '* * * looked out the back and started backing out and continued to back out with my arm on the back seat. I attempted to cut the truck between the 2 posts that held the wire in order to turn around. That is when I heard her scream.' Ware further testified that he backed a distance of 51 feet before striking plaintiff. It was admitted by Ware, and plaintiff's witnesses also testified, that the berm where the accident occurred was commonly used by pedestrians as a walkway.

Plaintiff was taken to a hospital where she was found to be '* * * in severe shock; her pulse was very weak; her respiration was labored and weak and she was bleeding profusely from a deep tear or laceration in the perineum. In fact when I first saw her I did not think she would live any length of time. * * *' After initial treatment for shock plaintiff's injuries were later determined to be: a laceration of the perineum, the area between the vagina and the rectum, 6 inches in length and from one to six inches in depth; both shoulder blades were broken; 8 ribs, Nos. 2 through 9 on the left side were fractured, most of them having more than one fracture, accompanied by severe internal bleeding into the chest cavity; her left clavicle or collar bone was fractured; one hand broken or sprained; and many other bruises and abrasions. She remained in the hospital 52 days during which time it was necessary to aspirate her chest cavity several times, that is, remove the accumulated blood or other fluid by means of a needle inserted into the area, the total amount removed being some 2,000 centimeters. It was also necessary to relieve her severe pain in breathing by injecting novocain into the nerve of each fractured rib several times. Dr. James A. Walker, a thoracic surgeon, testified that: 'In my opinion the multiple rib fractures are healed but the normal shape and action of the ribs are permanently impaired and I believe the motion of the left rib diaphram is permanently impaired and the expansion of the left lung is impaired permanently by the constrictive pleuritis.' He described the 'constrictive pleuritis' in this particular case as having the effect of a 'binding membrane preventing the normal expansion of the left lung, the normal motion of the left diaphram and the normal motion of the left chest cage. This process has the resulting effect of preventing the normal flow of air in and out of the left lung.' Dr. Walker further testified that: '* * * Based upon my physical findings, the patient's complaint and the chest observations and the pulmonary studies, I believe the function capacity of the left lung to breath is impaired about 50 per cent.' On cross-examination Dr. Walker stated that while the left lung carries only about 45 per cent of the breathing ability of a person, of which plaintiff has lost 50 per cent, it is necessary 'to have approximately 35 to 40 per cent of lung tissue to breath.' Dr. Jack W. Hunter, plaintiff's attending physician, testified that: '* * * I examined her on May 16, and when I checked her she was unable to raise her arms above the level of her shoulders; any motion of the head or neck she complained of severe pain; she was very tender when touched over the shoulder blades and I checked the perineum and it had healed but was very sensitive and the scar seemed to be red and irritated.' He further testified that the plaintiff has neuritis, an injury to the nerves due to the pain and irritation suffered and has sustained a traumatic arthritis of both shoulders as a result of the injury, which will probably grow progressively worse. On cross-examination, Dr. Hunter testified that plaintiff had made a surprising recovery from her injuries and that, while he would not consider her a helpless person, she could not carry on her normal housework to the extent she formerly did. Dr. Edmiston testified that: plaintiff had sustained neuritis and arthritis following the injury which is permanent and probably progressive; the fracture of the clavicle was of no great significance but 'later on will develop a great traumatic arthritis and will limit the motion of the collar bone'; she will 'maintain 90 degrees, which is the motion level with the shoulder. She will not have any shoulder motion that will permit her to reach over her head or any motion that would require lifting her arm above 90 degrees'; and, while her right shoulder blade has healed, it has healed abnormally with a dislocation of the lower portion. On cross-examination, Dr. Edmiston testified that he would assume plaintiff could do light housework which did not entail any heavy work or lifting or reaching over her head. Hospital and medical bills, exclusive of drugs since release from the hospital, amounted to $1,500.00.

Plaintiff, at the time of her injury, was 49 years of age and separated from her husband, whose whereabouts is unknown. She has two children, a boy and a girl, aged 14 and 16, respectively, residing with her. She was engaged in performing housework for other people, from which employment she averaged $60.00 a month, and during the month preceding her injury she had engaged in selling cosmetics in the Webster Springs area from which she earned commissions of $30.00. Since her injury, plaintiff states: she cannot dress herself due to pain which prevents her from raising her arms and from stooping over; she still has pain from the laceration in the perineum; she has difficulty in breathing and in walking uphill; she has pain in her chest, back and shoulders; and, she is afraid of automobiles and traffic and afraid to go near a road or street unless accompanied by someone. She also testified that she does some housework such as sweeping and washing dishes but it is necessary for her to get on a chair to put dishes away when the cupboards are over her head. She testified that she is unable to iron, scrub floors, wash walls or work in a garden.

Twelve assignments of error are made in this Court, only one of which it is deemed necessary to discuss in arriving at our decision. Suffice to say, the Court finds no error in the giving or refusal of instructions, in the submission to, and the findings thereon, of the jury with regard to the questions of primary and contributory negligence; nor in the other assignments.

The question as to the excessiveness of the verdict is the...