Worth James Const. Co. v. Herring

• Decision Date: 13 March 1967
• Docket Number: No. 5--4135,5--4135
• Parties: WORTH JAMES CONSTRUCTION COMPANY, a Corporation, Appellant, v. Jean HERRING, Appellee.
• Court: Arkansas Supreme Court

Page 838

412 S.W.2d 838

242 Ark. 156

WORTH JAMES CONSTRUCTION COMPANY, a Corporation, Appellant, v. Jean HERRING, Appellee.

No. 5--4135.

Supreme Court of Arkansas.

March 13, 1967.

Rehearing Denied April 17, 1967.

Smith, Williams, Friday & Bowen, by Boyce R. Love, Little Rock, for appellant.

Patten & Brown, by Gerland P. Patten, Little Rock, for appellee.

JONES, Justice.

We are called on here to determine whether the trial court abused its discretion in setting aside a verdict and granting a new trial on motion of the appellee who had been awarded $2,500.00 in an action for personal injuries. Indeed we are called on to determine whether or not the trial court even had any discretion in the matter where the action is for injury to the person, but having concluded that the verdict should have been set aside and a new trial granted for error in instruction, the trial court's discretion becomes a minor issue.

Mrs. Jean Herring filed suit in the Pulaski County Circuit Court against Worth James Construction Company alleging damages for personal injuries as a proximate result of the negligence of defendant's truck driver in driving defendant's truck into the rear of plaintiff's automobile as she slowed down to make a right hand turn from the highway.

The case was tried to a jury and a verdict was returned for plaintiff in the amount of $2,500.00. The verdict was set aside by the trial court and a new trial granted on motion of the plaintiff, for the reason that the verdict was contrary to the law, contrary to the evidence, contrary to the law and the evidence, and for the further reason that an instruction given by the court over the objection of the plaintiff, was error. The defendant has appealed and relies on one point:

'It was error for the trial court to set aside the verdict and judgment in favor of appellee and grant her a new trial.'

On November 23, 1964, the appellee and the appellant's driver were driving their respective vehicles the same direction on Rodney Parham Road in Pulaski County with appellant's truck behind appellee's automobile. Appellant's truck driver 'speeded up' to cross a bridge before an oncoming automobile came onto the bridge and after observing appellee slowing down ahead of him in preparation to turn from the roadway, appellant's driver skidded the truck sixty-six feet in an effort to stop, but was unable to avoid striking appellee's automobile.

Appellee experienced neck, head and shoulder pains immediately following the collision. She was nervous and upset and the following morning she was vomiting and went to the doctor who prescribed muscle relaxants and medication for pain and to induce rest. This condition persisted and about two and a half weeks later appellee developed a 'lump' or choking sensation in her throat which was also associated with vomiting. She also began experiencing low back pain, as well as the continued pain in the shoulders, head and neck.

The appellee in this case had injured her neck in an automobile accident in January 1961. She had injured her back trying to start a power lawn mower on July 19 or 20, 1964, and she had experienced a period of vomiting over a period of a week to ten days during November and December 1961.

On December 27, 1964, appellee was operated on for hiatal hernia and on March 1, 1965, for herniated intervertebral disc in the lumber area of the back. The medical evidence is to the effect that neither of these conditions was caused by the collision of November 23, 1964, but that the symptoms of both conditions were aggravated by the collision.

In connection with appellee's operation for the hiatal hernia, an incision was made from beneath the left breast to the right side of the abdomen. An additional incision was made in the left side through which a tube was inserted into the stomach for drainage following the operation, and appellee was fed intravenously for a period of five days.

About the second or third day following the operation, appellee noticed the loss of sensation in two fingers on her right hand. The evidence is uncontroverted that this symptom was attributable to an injury in the nature of a bruise to the ulna nerve and the severity of this condition continued to increase until by April 14, 1965, there was an 80 to 100 per cent loss of the function of the ulna nerve in appellee's right arm. Although there had been considerable improvement, the function of this nerve had not been completely restored at the time of trial, and this damage to the ulna nerve was an element of damage alleged by appellee in her amended complaint.

Appellant answered that the injury to the ulna nerve

'was a result of the improper positioning of the plaintiff on the operating table in the recovery room or in her bed all in the course of or subsequent to an operation for a hernia repair which took place on December 30, 1964, and the improper positioning was an intervening event completely independent of any conduct of the defendant or its agents, and no act of the defendant or its agents was a proximate cause of said damage.'

Dr. Kenneth Jones and Dr. Jack Downs were the only doctors who had treated the appellee and were the only doctors who testified at the trial.

As to the ulna nerve injury, Dr. Jones testified that he didn't see appellee when she first developed the ulna nerve symptoms and that he didn't know how it came on, but that he couldn't explain it on the basis of a rear end collision; that it came on during the period of time appellee was in the hospital for hernia surgery and that it is reasonable to assume something happened during that period of time. That any patient who is confined to bed may encounter these complications from simply being in bed and pushing themselves about.

As to the ulna nerve injury, Dr. Downs testified that several days, he didn't remember exactly how many days,

'* * * after Mrs. Herring's surgery she complained of some numbness and loss of sensation of the distribution of her right ulna nerve and that is something that happens on occasions, occasionally in bedfast patients and there is not really anything that can be done about it. It is due to the pressure that is put on the nerve either from lying still with one arm extended for perhaps intravenous medication running in the arm or scooting around on the elbows in bed.'

'I think it is calculated risk or hazard like any other hazard the patient assumes or risks that they assume when under surgery or enter the hospital or become immobile, it is a hazard of having to lie down and be still.'

Dr. Downs testified that it would be a fair assumption that the injury to the ulna nerve arose out of the surgery and treatment for the hiatal hernia, and on cross examination, Dr. Downs testified as follows:

'Q All right now just briefly now about this ulna nerve problem. I believe that you told me when I took your deposition that the ulna nerve problem probably dates back to the incident that occurred on the operating table, in the recovery room or within a few days after the operation while still in bed. Is that correct?

A Yes.

Q How would that generally happen, by the elbow getting on a sharp place and putting pressure on the nerve. Is that correct?

A It wouldn't have to be a sharp place. The ulna nerve is very superficial at the back side of the elbow and pressure on a mattress or anything pressure on the nerve in that area for a while. We don't know exactly how long it takes to bruise the nerve and again there are all degrees of this thing which would cause the injury.

Q You don't mean a flat curve, you mean a corner?

A Well probably a corner.

Q Normal lying in bed would not cause this?

A I think if you had a patient who was scooting around on their elbow in bed as patients certainly do after surgery that might be of sufficient severity to cause it. It is hard to pin the thing down.

Q I know but just the arm lying in normal position on a bed would not cuase it?

A I think if that arm was pinned down with intravenous solution running in it for two or three hours it certainly would cause it.'

At the close of the evidence, including the above medical testimony, as appellee's requested instruction No. 9, the court gave A.M.I. instruction 501 on 'proximate cause' as follows:

'The law frequently uses the expression 'proximate cause,' with which you may not be familiar. When I use the expression 'proximate cause,' I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.

'(This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.)'

And over appellee's objections, the trial court gave as appellant's instruction No. 4, A.M.I. instruction No. 503, as follows:

'If, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.'

The appellant first argues that as a matter of law the trial court had no discretion in setting the verdict aside and granting a new trial in this case, and in support of its argument, cite the following cases:

'Woodard v. Sanderson, 83 Okl. 173, 201 P. 361; Sharpe v. O'Brien, 39 Ind. 501; Metropolitan Street R. Co. v. O'Neil, 68 Kan. 252, 74 Pac. 1105; Blakely v. Omaha & C.B. Street R. Co., 94 Neb. 119, 142 N.W. 525.'

Ark.Stat.Ann. § 27--1901 (Repl.1962) defines 'new trial' and sets out eight grounds for a new trial, the fifth one being as follows:

'Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.'

The next section, Ark.Stat.Ann. § 27--1902 (Repl.1962) is as follows:

'A new trial shall not be granted on account of the smallness of...