Opinion
No. 36473.
May 19, 1947. Suggestion of Error Overruled June 9, 1947.
1. APPEAL AND ERROR.
Any error in admitting, in automobile negligence case, city ordinance not pleaded in declaration limiting speed to 20 miles per hour within corporate limits was harmless, where declaration alleged defendant was driving at a reckless speed in violation of law, State statute limited speed to 20 miles per hour in any business district, and there was evidence that collision occurred in a business district (Code 1942, sec. 8176).
2. TRIAL.
The giving of instruction on measure of damages requested by plaintiff in automobile negligence case was not error, though such instruction, standing alone, was subject to criticism, where its deficiencies were sufficiently supplied by instructions granted defendant.
3. EVIDENCE.
X-ray pictures, when material, are admissible upon authentication which satisfies court that thing or person is fairly portrayed and evidence or its equivalent, that pictures were correctly made by a competent person with a proper machine.
4. EVIDENCE.
The question of competency of X-ray pictures as evidence is a preliminary one addressed to sound discretion of court.
5. EVIDENCE.
Courts take judicial notice that X-ray photographs are being constantly made in every modern hospital and that such hospitals carefully preserve such photographs until called for by the party or physician.
6. EVIDENCE.
Showing that X-ray was made by regular operator at a hospital is sufficient prima facie to establish, for the purpose of admitting such X-ray picture in evidence, that operator possessed required skill and that machine employed was proper for the work.
7. EVIDENCE.
X-ray pictures of plaintiff's back and testimony of physician explaining and identifying them were admissible in personal injury action without testimony of operator who made pictures or custodian of them or direct testimony they were made on proper machine, where physician who was also competent to make and read X-rays testified they were made in hospital by X-ray operator in witness' presence, remained in hospital without alteration until brought into court, and were pictures of the particular injury of the identical patient whose case was under consideration.
APPEAL from the circuit court of Monroe county. HON. THOS. H. JOHNSTON, J.
Thomas J. Tubb, of West Point, for appellant.
The lower court committed error in overruling appellant's objection to the admission of the doctor and drug bills, admitted as an exhibit to appellee's testimony. The appellee had the duty and under the law, is required to prove by competent evidence the amount of damages suffered by him as a result of the wreck here complained of. Such should not be left to guess or conjecture. Certainly, bills for such large sums for drugs and doctors' services should not be admitted until positive proof had been made that they were incurred and required in the treatment of appellee, his wife and children, for injuries received in the wreck here complained of and that the charges were reasonable.
Ammons v. Wilson Co., 176 Miss. 645, 170 So. 227; 25 C.J.S. 830, Sec. 162 (6).
The court committed error in overruling appellant's objection to the testimony of Dr. J.W. Jackson with reference to the X-ray films, allegedly made of appellee. The X-ray films were not properly authenticated to authorize them to be introduced in this case over appellant's objection.
Beard v. Turritin, 173 Miss. 206, 161 So. 688; Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; 22 C.J. 515, 910, 913, 1117.
The court committed error in admitting over appellant's objections a part of an Ordinance of the City of Aberdeen, regulating the speed of automobiles on the streets of Aberdeen,
Code of 1942, Secs. 8176, 8177; 41 Am. Jur. 295, Sec. 12; 9 Blashfield's Cyclopedia of Automobile Law and Practice, Part 2, p. 73, Sec. 5953.
The court committed error in granting to appellee the following instruction, to-wit: "The Court instructs the jury that if you return a verdict for the plaintiff, W.E. George, for actual damages, that in awarding such damages you are not limited alone to the actual money loss, if any sustained by W.E. George, and in estimating such damages you shall award him such damages sufficient in amount to compensate him in full for the injuries, if any, as shown by the evidence to have been sustained by him; also the physical pain and suffering, if any, endured by him in consequence of the injury and any physical pain and suffering he may endure in the future as a result of such injuries, if any, and any mental pain and suffering shown by the evidence to have been suffered as a result of such injuries; also any damages to the plaintiff for doctor bills and hospital bills, if any, shown by the preponderance of evidence to have been incurred by the plaintiff in the treatment of himself and other members of his family injured in the same collision, and also such damages, if any, as shown from the preponderance of the evidence in the case, as he sustained as a result of the damages to his automobile; but the verdict in any event shall not exceed the amount sued for."
The damages were so excessive as to evince prejudice and passion on the part of the jury against appellant and in favor of appellee. Under the vacillating and uncertain and inconsistent testimony of Dr. Jackson, together with the fact that appellee lost no time from his employment for six months following the accident here complained of, an award of $7,420 in damages, of which sum nearly $5,000 must, of necessity, be for the physical pain and suffering and mental anguish of appellee, is excessive and exhorbitant and certainly indicates that the jury was biased and prejudiced against appellant and in favor of appellee, and appellant's motion for a new trial should have been sustained.
Thomas F. Paine, of Aberdeen, for appellee.
With due respect to counsel for the appellant, we respectfully submit there is no merit in any of the assignments of error. The appellant obtained ten charges, none of which were in conflict with the charges granted the appellee, and the jury could not possibly have been misled as to the applicable law.
The objection made to the introduction of the ordinance was not that it was not a legal ordinance of the City of Aberdeen and that it had not been proven, but that it should not have been admitted in evidence because it was not plead in the declaration. The declaration stated that the accident happened within the City of Aberdeen, Mississippi, and that the appellant's bus driver was operating the bus at an unlawful rate of speed, and we took the position that the introduction of the ordinance was a matter of evidence and that we did not have to specifically refer to any ordinance in the declaration. But even if we were mistaken as to this, none of the instructions granted the appellee mentions any rate of speed or any ordinance, but were based largely on the negligence of appellant's bus driver in failing to have the bus under control and failing to keep a proper lookout, resulting in injury to the appellee.
We do not think there is any merit in the assignment of error as to the introduction by appellee of the various hospital and doctors' bills and the bills for medicine, as we gave the appellant due notice in the declaration of the total amount and listed the various parties to whom appellee had paid the money and the amount of each bill, and the bills were properly itemized so far as appellee was able to get them itemized. The appellee testified very clearly that all of these various items in these bills were incurred as a result of the injury which he sustained and those incurred in the treatment and care of his wife and children as a result of the injuries sustained by them, for all of which under the law he is liable.
The X-ray films which were offered in evidence by the doctor were films found in the records of the Aberdeen Hospital concerning the injuries of the appellee and the doctor testified that he was present when the X-ray pictures were made by a Dr. Williams and that they were properly made and had not been altered or changed in any manner and that he, himself, had been trained to both take X-ray films of the human body and to interpret them after they were taken. Surely there was no error made in the admission of these X-ray films.
The last assignment of error argued by counsel for appellant is that the judgment was excessive; but we respectfully submit that the proof was ample to have justified a much larger verdict, and surely a man who went through the suffering that this man did, and will continue in the future to endure, is entitled to have the small judgment rendered in this case sustained.
Argued orally by Thomas F. Paine, for appellee.
Appellee obtained a judgment for damages against appellant in the Circuit Court of Monroe County for injuries alleged to have been sustained by him, his wife, his two minor children, and his car, resulting from a collision between appellee's car, in which he and his family were at the time, and a bus belonging to appellant and being operated in his business by his employee.
From the judgment, appellant brought the case here on appeal, and assigns a number of errors, but of these, we have decided that only three should be discussed.
Complaint is made that the trial court erred in admitting into evidence an ordinance of the City of Aberdeen, in which city the accident occurred, for the reason that it was not pleaded in the declaration. In dealing specifically with negligence cases, the authorities are divided on this question. 38 Am. Jur., Sec. 330, p. 1028. It is not necessary, however, for us to adopt any view of such issue here because of the identical provisions as to the applicable speed limit in the ordinance and the statute, and the allegation of the declaration that appellant was "running at a reckless speed in disregard of the rights of the other travelers on the street and in violation of the law." The ordinance makes it unlawful to drive a motor vehicle over twenty miles an hour in the corporate limits of the city. Section 8176, Code 1942, provides that: "Where no special hazard exists the following speeds shall be lawful but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful: 1. Twenty miles per hour in any business district; . . ." There was substantial evidence here which the jury had a right to believe, and manifestly did believe, since they returned a verdict for appellee that the speed of the bus was in excess of twenty miles per hour at the time of the collision, and that it occurred in the business district of Aberdeen. Such error, if error it be, was a harmless one, and not cause for reversal.
The granting of an instruction to appellee on the measure of damages is attacked on several grounds — among them, that it conflicts with a certain instruction granted appellant. With this contention, we cannot agree. The two instructions supplement each other, in our judgment. Nevertheless, the challenged instruction, standing alone, is somewhat subject to criticism, but its deficiencies are sufficiently supplied by the instructions granted appellant. See Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Alabama Vicksburg Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703. Therefore, this assignment of error must be overruled.
This brings us to a more serious issue on the appeal, and that is, whether or not the court below erred in admitting, over defendant's objection, the X-ray pictures of appellee's back, and the testimony of Dr. Jackson, explaining and identifying them. In Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646, 648, we said: "X-ray pictures, like photographs, maps, and diagrams, when material, are admitted in evidence on authentication which satisfies the court that the thing or person is fairly portrayed by the X-ray." We also held further, that there must be evidence, or its equivalent, that the picture was correctly made by a competent person with a proper machine, and that the question is a preliminary one to be addressed to the sound discretion of the court. In that case, it is to be noted that it was not shown where the picture was made, or whether the person making it was skilled therein, or whether made on a proper machine, nor was anything shown in the evidence equivalent thereto.
However, in the case before us, it was shown that the X-ray pictures were made in the Aberdeen Hospital by an expert X-ray operator, who did all of such work at that institution. It was done in the presence of Dr. Jackson, the patient's attending physician. He himself was shown to be competent to operate X-ray picture-taking machines, and to read such pictures when made. It was further proven that this particular picture had remained in the hospital until brought into court for introduction as evidence in this case; that it had so remained there without alteration or change; and that it was the same X-ray picture of the particular injury here involved and of the identical patient, whose case was there and is here under consideration. All of the above facts are attested by the testimony of the attending physician, Dr. Jackson.
But appellant complains that the operator, who took the picture, was not introduced; nor was the hospital employee who was the custodian of it; and there was no evidence that the X-ray picture was made on a proper machine. Dr. Jackson testified that it had been properly made.
Notwithstanding the challenge to testimony as to the X-ray pictures, we must overrule this assignment of error because of the proof thereby made, and because courts take judicial notice that X-ray photographs are being constantly made in every modern hospital. 31 C.J.S., Evidence, Sec. 29, Note 95 (2), p. 549. On the same principle, judicial notice may be taken of the fact that such hospitals carefully preserve these photographs until called for by the party or physician. This information is so widely prevalent among average people of intelligence as now to have become a fact of common knowledge. And, in our opinion, when such a photograph has been taken by the regular operator at such a hospital, this is sufficient, prima facie, to establish that the operator possessed the required skill and that the machine employed was proper for the work. Compare Phillips v. Wilmington Philadelphia Traction Co., 1 W.W. Harr., Del., 593, 117 A. 241, and the cases therein cited. Appellant offered no evidence in refutation of any of the foregoing. We cannot say that the trial judge abused his discretion, when he overruled appellant's objections to this evidence, and must, therefore, overrule this assignment of error also.
We have carefully considered all of the matters assigned as errors, and find ourselves unable to sustain such assignments, and the judgment of the trial court is affirmed.
Affirmed.