Opinion
March 28, 1949.
1. Trial — challenges — appeal.
There were three defendants and they requested the court that each of them be allowed four peremptory challenges to the jury. The court directed them to retire and to consider whether four challenges to be divided among the three defendants would not be sufficient. Counsel for defendants retired and upon their return they exercised three challenges and thereafter accepted the jury without having exhausted the four challenges already allowed them. Held, that on appeal the defendants could not be heard to complain that the court did not allow four challenges to each of them.
2. Trial — verdict — surplusage.
A verdict returned against two defendants in a tort action recited as to the amount thereof that the damages were assessed "at $7000 ($3500 each)". The court properly entered judgment against the defendants jointly and severally for $7,000, disregarding the parenthetical recital as surplusage.
3. Damages — personal injury.
When the injury to a boy consisted of a serious fracture of the leg at a point above the knee, causing intense pain and suffering with the probability of a permanent impairment, a verdict of $7000 cannot be set aside as excessive.
4. Municipalities — negligence — obstruction in paved streets.
When in a paved street 20 feet wide from curb to curb, a municipality permits to remain therein a tree projecting 2.7 feet into the traveled portion of the street, the jury was justified in finding, in an action for injuries resulting from a collision at night with the tree by an automobile in which plaintiff was a passenger, that the municipality was guilty of negligence in permitting such a permanent traffic hazard and that this negligence proximately contributed to plaintiff's injuries.
5. Negligence — instruction — must be specific and not general.
When the charge of negligence against a bus company was that it failed to keep its bus on its side of the center of the street, and that this caused the automobile in which plaintiff was riding to be turned so far towards the curb as to collide with a tree projecting at that point into the traveled portion of the street, an instruction which instead of addressing itself to the specific charge of negligence, told the jury in general terms that it was the duty of the bus line to use reasonable care and caution in the operation of its buses is erroneous under the rule that where negligence is the subject of the action the instructions must confine the verdict to the ground of negligence alleged, and must give a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence.
Headnotes as revised by Hall, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, J.
Dunn Singley, for appellant, City of Meridian; Gillespie Minniece, for appellant, Meridian City Lines.
Brief for appellant City of Meridian.
By reference to the record, there will be found a special bill of exceptions duly signed by the circuit judge, from which it is shown that the lower court ruled that all three defendants would be permitted only an aggregate of four (4) peremptory challenges, to be apportioned among the three defendants. Section 1525, Code 1942, which authorizes four (4) peremptory challenges to each party in a civil suit has been construed by this court in the case of Miss. Cent. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, to allow each defendant four (4) such challenges only when their interests are opposed to each other. Certainly, in the present case the interests of all three defendants are opposed and adverse. The Aultman case goes further, however, and held that where the defendants did not exhaust the peremptory challenges allowed them they were not prejudiced by the lower court limiting the Railroad Company and its engineer to four (4) such challenges between them. However, there is a clear and concise difference in the Aultman case and this case. In the Aultman case, supra, the objection was not raised until plaintiff had tendered to defendants a full panel of twelve (12) jurors. In the present case, this appellant requested and was refused the four (4) peremptory challenges before the jury was even empaneled. The consequent action of appellant in not exhausting four (4) challenges after such a ruling does not fall within the rule announced in the Aultman case, supra, because the prior ruling of the lower court prevented this appellant from exercising the freedom and choice which attends the unrestricted challenge of any four (4) jurors. With three (3) defendants possessing the right to challenge only four (4) jurors between them, and each defendant having opposite interests, it becomes obvious that whatever exercise was made of the challenges, was done under circumstances which eliminated, completely, any semblance of choice, and amounted to a denial of this appellant's statutory right, under Section 1525 of the Code, above referred to.
The lower court erred in receiving and accepting the verdict of the jury in the form and words in which said verdict was rendered.
When the jury returned its first verdict, it found for the plaintiff against the defendant, Meridian City Lines, in the sum of Three Thousand Five Hundred Dollars ($3,500.00) and against the defendant, City of Meridian, in the sum of Three Thousand Five Hundred Dollars ($3,500.00). Upon being directed to return and reconsider their verdict and to read all of the instructions as to the form of the verdict, the jury again retired and brought in a verdict whereby they found: "for the plaintiff as against Meridian City Lines, Inc., and City of Meridian, defendants, and assess his damages at Seven Thousand Dollars ($7,000.00), ($3,500.00 each)".
It has long been the settled rule in this state that there is no apportionment or contribution between two joint tort-feasors for the entire damages sustained. Our statute which authorizes separate verdicts as against several defendants is a procedural statute only and does not, in any respect, alter or intend to alter, the substantive law. In order to receive several verdicts the substantive law controlling the case must be such as to impose several separable and different respective liabilities. See 173 Miss. 487, 160 So. 604. Also Gillespie v. Olive Branch Building Lumber Co., 174 Miss. 154, 164 So. 42.
It is obvious therefore that the verdict of the jury attempts to apportion the damages between appellants and thus is defective in its entirety. Nor do we see how the apportionment part of the verdict may be stricken as surplusage for the reason that it is essentially an integral part of and responsive to the issues. See McNairy v. Gathings, 87 Miss. 215. Such a verdict is, therefore, no verdict at all.
The verdict was against the overwhelming weight of the evidence.
In any discussion of such an assignment of error which must necessarily involve a consideration of all the facts developed in the case, any attempt to set out at length all the pertinent testimony in this appeal where the testimony is rather voluminous would make the brief another record. Within the limitations imposed by any such discussion we will discuss the several outstanding facts which we believe merit a reference here.
First, however, is the recognition of the rule that a municipality is only required to use ordinary care to keep its streets in a reasonably safe condition for persons using ordinary care and prudence. No citation of authorities is believed necessary for such a well established rule.
In the application of this rule to the present case we find the existence of the following facts:
(a) The tree in question has been so situated for over 24 years.
(b) To the knowledge of Mrs. Bouligny, in front of whose residence the tree is situated, no car or truck except Wilsons had ever collided with the tree.
(c) The tree did not extend into the asphalt portion of the street but only into the gutter of the street.
(d) 31st Avenue is twenty (20) feet wide from curb to curb between 7th Street and Valley Street.
(e) Wilson, the driver of the car and one of the defendants below, knew of the existence of the tree and had known of its existence for over 25 years. In fact, he had passed the tree every day for a long number of years.
(f) When Wilson turned to his right to avoid, as he testified, a collision with the bus of Meridian City Lines, Inc., he turned directly toward the curb on the West side of 31st Avenue.
(g) Further, Wilson testified that after the collision with the tree, the back end of his car was "some foot and a half" from the curb.
(h) Wilson, as well as Mrs. Baker and appellee, testified that the bus of Meridian City Lines, Inc., was almost upon him at the time he turned his car into the curb.
Now since the jury must have accepted plaintiff's version as to the proximity of the Meridian City Lines bus at the time of the collision and the further fact that the bus driver was actually to the left of the center line of the avenue and that Wilson had to turn sharp to his right to avoid a collision with the bus, the conclusion becomes inescapable that at the speed Wilson was traveling at the time, approximately eighteen miles per hour, and the angle at which he turned, he would have hit the curbing in any event, and any other object which might have been parked there such as another car, or a wagon, and this, even though he may have known that another car or a wagon was there. Therefore, the presence of the tree as located can no more be considered as a proximate cause of the injury than the curb itself, or if the tree had been located in the grass plot between the curb and the sidewalk, for at the speed Wilson was traveling and the angle at which he turned into the curb, for both of which the jury found him to be free of negligence, the only proximate, sole or concurring, cause of the injury must have been the negligence of the bus driver which the jury by its verdict, found to exist. We believe, therefore, that the negligence, if any, of the City was interrupted and insulated by the jury's determination of the negligence of the bus driver which thereupon became an intervening, independent and efficient cause, and thereby relegated any original negligence of the City to the position of a remote cause. Nor is this conclusion weakened by the decision of this court in the case of Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42, wherein it is stated: ". . . it is sufficient to say that the negligent act of a person, resulting in injury, is the proximate cause thereof, and creates liability therefor, when the act is of such character that by the usual course of events some injury, not necessarily the particular injury received in the particular manner complained of, would result therefrom, provided the attendant circumstances are such that an ordinarily prudent man ought reasonably to have anticipated that some injury would probably result from the act alone."
Can it be said that an object as large and as obvious as a tree, located in the same position for over twenty years and which had never occasioned an injury of any kind to anyone, and was known to the driver, Wilson, to exist in such place, is such a circumstance which an ordinarily prudent man ought reasonably to have anticipated would probably produce an injury? What is or in is not reasonable must be determined by experience and certainly twenty years of experience should be sufficient to produce a reasonable sense of probability upon which a person may safely act. We earnestly contend that under the circumstances in this case, the tree was a remote cause of the injury.
The verdict was so excessive as to evince prejudice and passion.
From a whole reading of the testimony of both doctors in this case, it becomes apparent that appellee has suffered no permanent injury as a result of the present accident and that such injury as can be attributed to the present accident has completely healed. It can only be concluded from the record that the plaintiff suffered no permanent disability from this accident, as there was no shortening of the injured limb resulting from this injury. This injury had no effect upon the deformity in the plaintiff's hip, nor did this injury in anywise affect the size of plaintiff's feet. But, to the contrary, all the proof shows that this injury has "completely healed". Since the injury here sued for has been identified as being only a green stick fracture with no broken bones, and with only a small amount of pain attendant upon the injury, a verdict in the amount of Seven Thousand Dollars ($7,000.00) is so excessive as to evince passion and prejudice. So large a verdict is unjustifiable for such an injury and warrants a reversal for a new trial.
Brief for appellant, Meridian City Lines, Inc.
There seem to have been two cases decided in this State involving attempts by the jury to apportion damages in tort cases. Neither of these cases is on all fours with the case at bar but both of them indicate that the proper and necessary procedure in the case at bar would have been for the trial judge to have sent the jury back for a third time with directions that one verdict for an entire sum be rendered.
In the case of Mississippi Central Railroad Company v. Roberts, 173 Miss. 487, 160 So. 604, the jury returned into court two separate verdicts, one against one defendant for $8500.00 and one against another defendant for $1,000.00. The court sent the jury back with directions that they could return only one verdict and against both defendants in the same amount and in such amount as the jury should determine. They returned and brought in a joint verdict. The court held that the trial judge had followed the right procedure and that the statute regulating the manner in which juries shall be instructed by the court did not make his actions illegal.
In the case of Gillespie v. Olive Branch Building and Lumber Company, 174 Miss. 154, 164 So. 42, the jury returned the following verdict: "We, the jury find for the plaintiff as against the defendant, J.H. Brewer, and assess her damages at $4,000.00." "We, the jury, find for the plaintiff as against the defendants, Olive Branch Building Lumber Co. and R.A. McDougal, and assess her damages at $3,500.00." The trial judge asked counsel if the verdicts should be accepted. Counsel for plaintiff responded that they should. Counsel for one defendant remained silent and counsel for the other defendant objected. The court received the verdicts and entered judgment against both defendants for $7500.00. The court held that the jury could not apportion the damages and that the apportionment could not be treated as surplusage. The court stated that that was not a proper case for the surplusage rule, although there seems to be some authority therefor in other jurisdictions. The court stated that the jury rendered separate verdicts and "its verdicts may have been different for aught we know, if the same damages are to be assessed against all the defendants." In the case at bar the jury by its actions certainly indicated that if they had been instructed that they could only bring in one verdict against both defendants their verdict may have been different.
Thus it is seen in two separate recent cases our court has stated that a verdict apportioning damages between joint tort-feasors cannot be accepted as a legal verdict and the apportioning part cannot be treated as surplusage. It is true that in neither of those cases was a lump sum judgment rendered, but we do not see the logic in rejecting a verdict of $3500.00 against the City of Meridian and $3500.00 against Meridian City Lines, and accepting a verdict of $7,000.00, ($3500.00 each). Certainly the intention of the jury to apportion the damages was just as clearly indicated in the second verdict as in the first. If there were no other errors in the record this case should be sent back for a new trial on that ground alone. Certainly taken in connection with the other errors argued hereinbefore and to be argued hereinafter, this appellant is at least entitled to a new trial.
Instruction Number 8 for the plaintiff is erroneous and should not have been given. At the request of the plaintiff the following instruction was given: "The court charges the jury for the plaintiff that the Meridian City Lines, Inc. as the operator for hire of passenger busses over the streets and avenues of said City, owed to the public in the lawful use of said highways the duty of exercising reasonable care and caution in the operation of its said buses so as to avoid injuries to others and in this case if the jury believes from the preponderance of the evidence that the Defendant, Meridian City Lines, Inc. negligently failed in the performance of this duty and as a direct and proximate cause thereof injuries were occasioned to this plaintiff or if the jury believes from a preponderance of the evidence that this defendant's negligence, if any, or failure to exercise reasonable care proximately caused or contributed in whole or in part to the injuries sustained by the plaintiff, if any, then the verdict of the jury should be against this defendant, Meridian City Lines, Inc. and in favor of this plaintiff."
It will be noted that nowhere in this instruction is any guide given to the jury on which to base any finding of negligence against this appellant. Neither of the two grounds of negligence set forth in the declaration are referred to. Such an instruction has been previously condemned by this court in the case of McDonough Motor Express v. Spiers, 180 Miss. 78, 177 So. 655. In that case the court stated that where there was an issue as to a truck being on the wrong side of the road, the jury should have been instructed as to the statute requiring them to keep on the right hand side of the road and the permissible exceptions. In the case at bar no such guide was given the jury and this instruction is therefore plainly erroneous and should not have been given.
Counsel for appellee does not even argue that this instruction was proper, but only argues that it was cured by Instruction No. 7 for this appellant. They cite several Mississippi cases, two of which, Ross v. L. N. Railroad Co., 178 Miss. 69, 181 So. 133; Graham v. Brummet, 182 Miss. 580, 181 So. 721, are further authority for the condemning of their Instruction No. 8. While we recognize the principle that a defendant cannot complain of an instruction given a plaintiff if he asks for an instruction announcing the same law, however, we do not believe the principle applies in this case although similar language is used in this appellant's Instruction No. 7. That instruction is a negative instruction, and it was proper to use the general negligence without defining the particular acts. The appellee, however, was in an entirely different situation. It was their duty to point out to the jury positively the particular negligence of this appellant upon which they relied.
We have made a search of cases in the Annotated Digest System involving leg injuries for the past twenty-two years and have been unable to find any case in which a verdict approximating $7,000.00 was allowed to stand for a fracture of a leg bone which healed normally. We have found a number of cases in which said verdicts were held to be excessive. In the case of Hartzheim v. Smith (Wis.) 298 N.W. 196, an award of $2000.00 to a three year old girl for pain and suffering up to the time of trial for a broken leg was held to be excessive by $500.00. Plaintiff had also suffered numerous abrasions, had been in the hospital seven weeks, her leg was four or five weeks in traction and from two to three weeks in a cast. She suffered somewhat more than usual.
In the case of Bliss v. Hartnelt (Ohio) 192 N.E. 818, a judgment of $7000.00 to a forty-seven year old man for fracture of the tibia of the left leg was held to be excessive and a new trial awarded. Plaintiff in that case also had damages by reason of loss of pay and damages to his automobile.
In the case of Mutti v. McCall (La.) 130 So. 229, a judgment for $1677.45 for bruises, a broken bone in the knee cap and a fracture of one of the bones of the right leg, where her leg was still sensitive at the time of the trial, was reduced to $1200.00. In the case of Grouchy v. Globe Furniture Company (La.) 134 So. 347, and award of $2646.40 to a woman for fracture of one of the bones of her ankle was reduced to $1600.00. Plaintiff had her foot in a cast for eight to ten weeks and had to keep her foot on a chair with a pillow for three additional months afterwards.
In the case of Tuttle v. Wicklund, 227 N.W. 203, an award of $7500.00 to an eleven year old girl for an oblique fracture of the bone of the right leg near the hip was held excessive by $2500.00. She also had other bruises. This fracture was found to be more difficult to set and heal than a straight fracture. Appliances had to be placed on her leg and the fracture and treatment caused much pain. Plaintiff was confined to bed for about eight weeks and moved about on crutches for sometime. There was a slight shortening of the leg.
In the case of McGaven v. Dadekhiar (R.I.) 163 A. 883, an award of $6400.00 to a man for a simple fracture of both bones in a leg right above his ankle, lacerations and bruises was held excessive by $2400.00 where he had a good recovery, although he lost some time and pay from work.
We were unable to find any reported cases in this State involving simple fractures of a limb. However, in the case of Gulf Coast Motor Express Company v. Diggs, 174 Miss. 650, 165 So. 292, this court reduced a verdict of $8000.00 for the fracture of a collar bone to $5000.00. The plaintiff in that case was knocked unconscious and had five other cuts in which it was necessary to take nineteen stitches forming several scar tissues with possible permanent injuries. The collar bone was in a cast for about two months during which he received treatment at a hospital and plaintiff was incapacitated from any kind of work for about six months. The trial judge reduced the verdict from $8000.00 to $5000.00 and the Supreme Court held that this was proper although the verdict of $5000.00 was still large.
Under the testimony for the plaintiff in this case that his injuries consisted of bruises, lacerations and simple green-stick fracture which completely healed, we believe that a verdict of $7000.00 in this case is so grossly excessive as to evince passion and prejudice on the part of the jury which tried this cause and for that reason a new trial should have been awarded.
Gilbert Cameron and Gibson B. Witherspoon, for appellee.
Complaint is made on the ground that the trial judge allowed the respective three defendants in court below only four peremptory challenges to jury and required the defendants to agree among each other as to same.
It is perfectly obvious that the appellants waived any right to have assigned to each the statutory number of peremptory challenges. They did not inform the court of their inability to agree among themselves and as a matter of record it no where appears that there was any disagreement between them while in the joint act of selecting the jury. The fact that their interests were divergent and probably in conflict does not alter the case. The rule requiring exhaustion of challenges applies forcibly here. This was not done and no claim that this took place is here made by appellants. See American Jurisprudence, Vol. 31, Chapter Jury, Sec. 118-193-194, Waiver; Conn. Mutual L. Ins. Co. v. Hillman, 188 U.S. 208, 47 L.Ed. 446.
Appellants cite Mississippi Central Railroad Company v. Aultman, 173 Miss. 622, as a case in point and insist upon reversal by reason of said opinion.
The rule contended for hereby this appellee to the effect that where challenges are not exhausted is recognized and approved by the Aultman case; hence this case is positive authority for the appellee. We quote Aultman opinion on this point: "Furthermore, appellants were not prejudiced by the ruling of the court, if it were an erroneous ruling, because they failed to exhaust the peremptory challenges allowed them." — citing Hollman case, 188 U.S. 208, 47 L.Ed. 446, and Hubbard v. Rutledge, 57 Miss. 7, 4 C.J. 952; Lewis v. State, 173 Miss. 821.
Appellants insist that no legal verdict was returned and that cause must be reversed for this alleged error.
Appellee responds by asserting that the first as well as the second verdict were valid legal verdicts under surplusage rule long since approved by this court.
Upon return of first verdict, which was a verdict against each appellant for $3,500.00 and no mention of the defendant, Wilson, the circuit judge followed the announced rule as to failure of verdicts to be in proper form by directing the jury to retire and read instructions as to form, etc.
The second and accepted verdict was against both appellants for $7,000.00 with figures ($3,500.00 each) enclosed by brackets and a finding of no negligence against defendant Wilson.
This verdict was accepted by the court and judgment was entered by the court against both appellants here for $7,000.00.
Appellants were joint tort feasors and as such were liable under the law each for the total amount of verdict.
The attempt by jury to apportion the amount between appellants was an abortive one; did not vitiate the valid verdict of a lump sum awarded against both appellants in the second verdict; everything was ascertained which the law required in order to render a judgment upon the verdict. "If more is found than is necessary it may be disregarded as surplusage, but it does not vitiate that which is necessary and well found."
The foregoing announcement finds expression in our decisions as well as other jurisdictions:
See Windham v. Williams, 27 Miss. 313; Louisville and Nashville R. Co. v. King, 119 Miss. 79; Morris v. Robinson Bros. Motor Co., 144 Miss. 861. However the same rule is recognized in many other jurisdictions. See 53 Am. Jur., Sec. 1038, and cases thereunder — "Matters Outside Issues Surplusage". See Bakken v. Lewis, et al, March 14, 1947, 26 N.W.2d 478; Robyn v. White, 153 Minn. 76, 189 N.W. 577; Begin v. Lieberbach Bus Company, Inc., 167 Minn. 84, 208 N.W. 546; Dextone Co. v. Building Trade Council (2 Cir.) 60 F.2d 47; Geo. Scrambling Co. v. Tennant Drug Co. (Ohio) 158 N.E. 282; Hall v. McClure, 112 Kansas 752, 212 P. 875, 30 A.L.R. 782; Emblem Oil Co. v. Taylor, 118 Pa. Supp. 259, 179 A. 773; Warren v. Westrup, 44 Minn. 237, 46 N.W. 347, 20 Am. State Rep. 578; Atherton v. Crandlemine, 140 Me. 28, 33 A.2d 1303; Lake Erie and Western Railway Company v. Halleck, 78 Ind. App. 495, 136 N.E. 39; Penn. Ry. Co. v. Logansfort Loan and Trust Co., 7th Cir. 29 F.2d 1; See also 17 Corpus Juris 1084, 25 C.J.S. Damages, Par. 189, and 52 American Jurisprudence, Par. 124, page 460.
Complaint is made as to Instruction #8 quoted. The case of McDonough Motor Express v. Spiers, 180 Miss. 78 is cited as authority for consideration of this instruction.
This court will find in that case that Justice Anderson was careful to observe: "This defect was not cured by any instructions obtained by appellant." Where similar instruction was granted opposing side no complaint can be made and the error, if any, was cured. This is exactly what happened in this case. The appellant, City Bus Lines, Inc., procured this identical instruction and same is Instruction #7. If error was in Appellee #8 instruction, the same was cured by instruction #7 to the appellant, City Bus Lines, Inc.
"The rule is that a judgment will not be reversed for error in appellee instructions when those given for appellant are subject to criticism on same ground embrace the same vice." Ross v. L. N.R.R. Co. (Miss.), 181 So. 133, 14 R.C.L. 815. Party is estopped, 182 Miss. 179, 181 So. 134; also 1 So.2d 790. See also Mississippi cases reported in 162 Miss. 699, 139 So. 403; 92 Miss. 671, 46 So. 829; 180 Miss. 78, also 182 Miss. 580, 181 So. 721.
They say that verdict is excessive.
The record is replete with detailed description of injuries, suffering, permanent nature of same, together with the fact that the jury observed the injured limb by the child disrobing and making profert in open court.
For a discussion of question of excessive verdict and applicable law, we invite the court's attention to the case of Mississippi Utilities Co. v. Pearce, 161 Miss. 252 and numerous authorities thereunder. See also:
A $7,000.00 verdict was held not excessive for compound fracture of leg below knee which caused three-quarter inch shortening of leg. Wright v. Straessley, 182 A. 682, 321 Pa. 1.
A $15,000.00 verdict for 2 1/2 year old girl for injuries sustained when struck by a truck held not excessive where one leg was left shorter than the other. Gulle v. Simpson Springs Co., 181 A. 915.
$18,000.00 verdict to 50 year old foreman for fracture to his right leg held not excessive. K.C. Sou. Ry. Co. v. Brock, 98 S.W.2d 949.
$8,000.00 verdict for 9 year old girl who sustained broken right leg causing shortening of leg held not excessive in Slipp v. Tyhe-Willey, 292 N.Y.S. 577.
$8,000.00 for 32 year old woman who sustained fracture to her leg and a half-inch shortening was held not excessive in Kemp v. Aldrich, 282 N.W. 833, 286 Mich. 591.
A farmer 52 years of age in 1883 fractured his leg producing a shortening thereof and a jury awarded $8,000.00. Funston v. Chicago Ry. Co., 61 Iowa 452, 16 N.W. 518.
In 1916 a teamster fractured his leg, producing a shortening and a jury awarded him $12,500.00. San Antonio Brewing Assn. v. Gerlack, 185 S.W. 316 (Texas).
In 1915 a jury awarded to engineer $13,000.00 for a leg fractured. Callahan v. Chicago Etc. Ry. Co., 161 Wisc. 288, 154 N.W. 449.
In 1913 a mail clerk, age 25, who received a compound fracture of a leg, the sum of $17,500.00. Fox v. Chicago Etc. Ry. Co., 207 Fed. 886.
In 1920 an engineer receiving a compound fracture of his leg, at 32 years of age, was given $18,000.00. Gulf Etc. Ry. Co. v. Crow, 220 S.W. 237 (Texas).
$20,000.00 verdict for plaintiff suffering serious leg fracture, resulting in permanent shortening of limb, was not excessive. Serio v. Bowman Dairy Co., 73 N.E.2d 160, 331 Ill. Appeals 356.
A $26,000.00 verdict for a boy 6 years old who received severe damages to his right leg was excessive and reduced to $14,000.00. Vogel v. Stupi, 53 A.2d 542, 357 Pa. 253.
$7,000.00 was fair and reasonable compensation for a 63 year old man who sustained a partial fracture. Sulovitz v. U.S., 64 F. Supp. 637.
$13,675.00 for fractured leg resulting in shortening of leg was held not excessive in Taylor v. Green Gas Co. v. Newcomb, 195 S.W.2d 307, 302 Ky. 564.
A $12,000.00 verdict for compound fracture was held not excessive in Young v. City of Farmington, 196 S.W.2d 124.
$12,000.00 was allowed college professor where it was shown his leg was shorter as a result of the accident and he would be permanently lame. Brandt v. Dodd, 8 So.2d 471.
A $19,000.00 verdict for breaking leg of switchman held excessive and reduced to $12,600.00. N.O.N.E. Ry. Co. v. Jackson, 145 Miss. 702, 110 So. 586.
Verdict of $10,000.00 for injury to stump of leg held not excessive. Yazoo City v. Loggins, 145 Miss. 793, 110 So. 833.
We respectfully submit that a $7,000.00 verdict is not excessive considering the record in this case and the diminishing purchasing power of our dollar today.
In the argument of appellant, City of Meridian, it is stated: "To the knowledge of Mrs. Boulingny, in front of whose residence the tree is situate, no car or truck except Wilson's had ever collided with the tree."
On cross-examination the witness was asked:
"Q. Mrs. Boulingny, when you moved there did this tree have this hole or these knocked out places on it?"
The witness answered: "The tree had been deteriorating through the years. It is a dry rot taking hold of the tree and I suppose it had been caused time to time perhaps from the tree being expose and perhaps from people running into it. We have some neighbors that have run into that tree."
It is submitted that if neighbors ran into this tree a sufficient number of times as to cause it to be scarred up and cause the damage as shown by Exhibit 1 to the witness Warren E. Baker that it would be most dangerous to the general public who would not be as familiar with its exact presence as these "neighbors".
Again on the same page of the brief it is stated: "(c) The tree did not extend into the asphalt portion of the street but only into the gutter of the street."
By examining the same exhibit it is clearly shown that some of the roots extended over into the asphalt portion of the said street, note how these roots pushed up the asphalt. Note also the yard stick which shows how far the roots were from the west curb.
As to the liability of the City of Meridian, one of the appellants, we believe it is sufficient to cite the case of City of Greenville v. Laury, 172 Miss. 118, 159 So. 121. In this case the standard of care required of a municipality in its construction or maintenance of its street was stated as "the duty to exercise ordinary care to keep its streets reasonably safe for use by persons exercising reasonable care and caution." This authority has been cited with approval in many later cases. See City of Meridian v. King, 11 So.2d 830 wherein this case cited with approval and this court held that it was a jury question as to whether obstruction in the street constituted negligence rendering the city liable to motorists proceeding on its streets. See also Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827. In our Baker case the jury had maps, actual measurements by an engineer, and pictures of this tree obstructing a portion of the traveled portion of the street. Certainly the jury had adequate evidence of negligence to hold the appellant City of Meridian liable. See also City of Meridian v. McBeath, 80 Miss. 485; Gould v. Town of Newton, 157 Miss. 11, 126 So. 826; and Liabilities of Municipal Corporation in Mississippi. Miss. Law Journal, May, 1931, page 311, "Streets".
Appellee brought suit against Louis Wilson, Meridian City Lines, Inc., and City of Meridian, a municipal corporation, for the recovery of damages resulting from personal injuries sustained by him when an automobile of Louis Wilson, in which he was riding as a guest, collided with a tree projecting 2.7 feet into the traveled portion of 31st Avenue, a public thoroughfare of said city. The declaration charged negligence on the part of the City of Meridian in maintaining the street with this dangerous obstruction; it charged negligence against Meridian City Lines, Inc., a corporation engaged in operating buses for hire as a common carrier within said city, in two respects, viz., (1) in failing to cause its bus to dim the headlights thereon while meeting the Wilson car at the time of the accident, and (2) in failing to cause its bus to be turned reasonably to the right of the center of the street, as a consequence of which Wilson was caused to drive his automobile into the tree; it charged negligence against Wilson in failing to stop his automobile when blinded by the bus lights.
Upon the trial Wilson testified that he was not blinded by the bus lights, and there was other evidence which tended to show that the bus lights on this occasion were not on high beam or bright; there was evidence to sustain the other charge of negligence against the bus line and also to sustain the charge of negligence against the city. The jury returned a verdict against the city and the bus line and absolved Wilson of negligence. From a judgment thereon the city and the bus line have appealed, but there is no appeal from the judgment in Wilson's favor.
The appellants both complain at the alleged action of the trial court in refusing to grant each of the defendants four peremptory challenges to the jury. At the beginning of the trial the record shows that each of the defendants requested four peremptory challenges to the jury; the trial court informed counsel for the several defendants that he would allow four challenges to all three of them and requested that they retire and try to agree among themselves as to how these challenges would be divided between them, but further stated that if they were unable to agree they should come back and advise the court of their disagreement and that he would then see what he could do about it. Counsel for all the defendants retired and came back and accepted the jury after exercising only three challenges, and at no time reported to the court any disagreement among themselves and at no time made a request for any further challenges. They did not exhaust the four challenges allotted to them. (Hn 1) The trial court cannot be put in error upon such a showing. Since the appellants did not use the four challenges which were allowed them, they were not prejudiced and cannot complain. Mississippi Central R. Co. v. Aultman, 173 Miss. 622, 645, 160 So. 737; Hubbard v. Rutledge, 57 Miss. 7.
(Hn 2) Both appellants also complain at the action of the trial court in entering judgment upon the verdict which was returned by the jury. The jury first returned this verdict: "We, the jury, find for the plaintiff against Meridian City Lines $3500, and against City of Meridian $3500, a total of $7,000." Since in this state there can be no apportionment of damages against joint tortfeasors, as held in Mississippi Central Railroad Co. v. Roberts, 173 Miss. 487, 160 So. 604, the trial court did exactly what that case holds should be done, that is to say, the court declined to accept this verdict and requested the jury to retire for further consideration of the case and to read all of the instructions of the court pertaining to the form of verdict which they might render. The jury retired and after further deliberation returned this verdict: "We, the jury, find for the plaintiff as against Meridian City Lines, Inc., and City of Meridian, defendants, and assess his damages at $7,000, ($3500 each). We, the jury, find for the defendant, Louis Wilson, not guilty of any negligence." Upon that verdict the court entered a judgment in favor of plaintiff and agaist Meridian City Lines, Inc., and City of Meridian, jointly and severally, in the amount of $7,000, and discarded as surplusage that portion of the verdict which said "($3500 each)" and the court also entered judgment in favor of the defendant Wilson.
It is contended by the appellants that the last verdict was still an effort on the part of the jury to apportion the damages, while the appellee claims that the action of the trial court was correct in discarding as surplusage "($3500 each)." The authorities upon this point are not in harmony, but in 52 Am. Jur., Torts, Sec. 124, page 460, it is said that the numerical weight of authority is that the trial court is entitled to treat all the matter after the finding of joint liability as surplusage. In our opinion this is the better rule and is supported by the decisions of this court. In Windham v. Williams, 27 Miss. 313, this court said, "Here everything is ascertained which the law requires in order to render a judgment upon the verdict. If more is found than is necessary it may be disregarded as surplusage, but it does not vitiate that which is necessary and well found." This case was cited with approval in Louisville Nashville R. Co. v. King, 119 Miss. 79, 80 So. 490. While the facts in those cases were not identical with the facts here, nevertheless the principle announced is applicable, for here the jury found that the plaintiff had been damaged in the amount of $7,000 and that the bus line and the city were jointly and severally liable for that amount. This is everything that the law requires, and, while the jury found more than was necessary in adding to their verdict "($3500 each)", this does not vitiate that which was well found by the jury and it may be disregarded and treated as surplusage. There are numerous decisions from other jurisdictions which support this view. A number of them may be found in 52 Am. Jur. page 460, note 6. We direct particular attention to one of those, as well as a few of the others not mentioned in that note. In the case of Hall v. McClure et al., 112 Kan. 752, 212 P. 875, 30 A.L.R. 782, the jury returned a verdict "We, the jury, find for the plaintiff against the defendants and assess the amount of plaintiff's recovery from the defendants at $4,000; Isadore Walder, doing business under the firm name and style of Superior Cleaning Dyeing Company, $3,500, and the City of Kansas City, Kansas, $500." In a well reasoned case, reviewing numerous authorities, including Windham v. Williams, supra, the Supreme Court of Kansas held that judgment was properly entered against both defendants for the sum of $4,000 and that the jury's attempt to apportion the damages was properly disregarded as surplusage.
In the case of Bakken v. Lewis, et al., 223 Minn. 329, 26 N.W.2d 478, 482, where a jury returned a general verdict of $30,000 against all the defendants and handed up with the general verdict a writing which said, "The jury find for the plaintiff, and against the defendant, Frank Rehse, in the sum of $7,500.00. Against the defendants, Cecil Lewis and Duane Lewis, in the sum of $22,500.00", the Supreme Court of Minnesota said, "We are of the opinion that the attempted apportionment by the jury was mere surplusage and did not vitiate the general verdict."
The exact situation reflected in the instant case was found in Atherton v. Crandlemire et al., 140 Me. 28, 33 A.2d 303, 305, where the jury returned a general verdict for $800 against two defendants and then added the words "$400 each." The court quoted with approval from another Maine case [Currier v. Swan et al., 63 Me. 323] as follows: "The jury undoubtedly undertook to apportion among the defendants what part of the verdict each of them, as between themselves, should pay. This amounted only to a recommendation. If it was intended as anything else, it is merely surplusage, and is to be rejected as irregular and void. The general verdict must stand."
In Lake Erie W.R. Co. v. Halleck, 78 Ind. App. 495, 136 N.E. 39, 40, the jury returned this verdict: "We, the jury, find for the plaintiff against both of the defendants, and assess her damages at $800; Lake Erie Western Railroad Co., $700; John Jordan, $100." The court quoted the general rule from Gould on Pleading and said, "Under the rule above cited, which is supported by the weight of judicial authority, that part of the verdict by which the jury attempted to apportion the damages must be treated as surplusage, and does not vitiate that which is necessary and well found." Many authorities were cited by the court to support this holding.
In Pennsylvania Railroad Co. v. Logansport Loan Trust Co., Administrator, 29 F.2d 1, 3, the Circuit Court of Appeals for the seventh circuit said: "The jury . . found a verdict for the plaintiff in the sum of $25,000, and provided that it should be apportioned $15,000 to the widow and $10,000 to the daughter of the deceased. This apportionment was unwarranted and may be treated as surplusage."
In view of the above authorities and the numerous other authorities therein cited, we are of the opinion that the trial court committed no error in accepting the general verdict for $7,000 and in disregarding as surplusage the attempt of the jury to apportion the amount equally between the two defendants.
(Hn 3) It is contended also by both parties that the verdict for $7,000 is so excessive as to manifest bias and prejudice on the part of the jury. The record shows that the plaintiff sustained a serious fracture of his left leg at a point above the knee. There was evidence to justify the jury in finding that this injury not only caused intense pain and suffering but also that it has left him seriously impaired and that this impairment is probably permanent. In view of all the testimony we are unwilling to hold that the damages awarded are excessive.
(Hn 4) The City of Meridian did not request a peremptory instruction but in its motion for a new trial raised the point that the verdict against it is contrary to the overwhelming weight of the evidence, and urges here as error that the court should not have overruled that motion. The record shows without dispute that 31st Avenue, on which this accident occurred, is only twenty feet in width from curb to curb; that it is paved for this entire width and that the paving was laid about twenty years ago; that there is a large tree in the west margin of the pavement and approximately half of the body of this tree lies to the west of the curb line, which is straight; that the curb, which is six inches in height, runs up to about the center of the tree on each side and stops at the tree; an engineer testified as to measurements made by him, and the accuracy of these measurements is not challenged; they show that the body of the tree extended 2.7 feet east out into the traveled portion of the street; a number of photographs of the scene were also introduced without objection or challenge as to accuracy and they portray a situation from which we find that the jury was abundantly warranted in finding the city guilty of negligence in permitting such a permanent traffic hazard in the traveled portion of its street and in further finding that this negligence proximately contributed to appellee's injury, particularly in view of the narrow width of the street as hereinafter discussed. The city's motion for a new trial was therefore properly overruled.
Both appellants also complain at the action of the trial court in the granting of several instructions. These have all been carefully examined and we find no prejudicial error in any of them except the following which pertains only to the negligence charged against Meridian City Lines, Inc.: "The court charges the jury for the plaintiff that the Meridian City Lines, Inc., as the operator for hire of passenger buses over the streets and avenues of said city, owed to the public in the lawful use of said highways the duty of exercising reasonable care and caution in the operation of its said buses so as to avoid injuries to others and in this case if the jury believes from the preponderance of the evidence that the defendant, Meridian City Lines, Inc., negligently failed in the performance of this duty and as a direct and proximate cause thereof injuries were occasioned to this plaintiff, or if the jury believes from a preponderance of the evidence that this defendant's negligence, if any, or failure to exercise reasonable care proximately caused or contributed in whole or in part to the injuries sustained by the plaintiff, if any, then the verdict of the jury should be against this defendant, Meridian City Lines, Inc., and in favor of this plaintiff."
In considering the propriety of this instruction it must be remembered that the bus line was charged with two acts of negligence as hereinabove set out, one being with reference to its alleged failure to dim the headlights on the bus, and the other being with reference to its alleged failure to cause the bus to be turned reasonably to the right of the center of the street. The evidence failed to sustain the first charge as having contributed to the injury and the court instructed the jury that it could not find against the bus line because of any condition of the lights; this left the case against the bus line solely upon the charge that it negligently failed to cause its bus to be turned reasonably to the right of the center of the street when meeting the Wilson car. There was a conflict in the evidence upon this point; the proof for the appellee was to the effect that 31st Avenue runs north and south, that Wilson was driving south on the west half of the street and the bus was being driven north; that an automobile was parked against or near the curb on the east side of the street a short distance south of the tree in question; that the bus, as it traveled north, came around this parked car and over on the west side of the center of the street as the Wilson car approached from the opposite direction and did not completely turn back upon the east half of the street before meeting Wilson, and that Wilson, in order to avoid a collision with the bus, turned his car almost against the west curb of the street, and, as a consequence thereof, was caused to strike the tree. While the evidence was in conflict on these facts, as above stated, we are of the opinion that it was sufficient to justify the trial court in submitting to the jury the question whether the bus line was negligent in failing to cause the bus to be turned and kept reasonably to the east of the center of the street, and whether such negligence proximately contributed to Wilson's collision with the tree, for the proof did disclose that the extreme width of a standard automobile is 6.08 feet and that the extreme width of the bus was 7.92 feet, and even in the absence of the tree there was hardly sufficient room for both automobiles and the bus to have been abreast of each other within the twenty-foot space between the east and west curbs of the street.
It is argued by the bus line that the quoted instruction was erroneous as to it because this instruction did not announce to the jury the law as to the bus line's duty with reference to keeping on the east side of the center of the street. We have carefully read all the instructions to the jury and we find that the jury was never instructed as to this duty. (Hn 5) The quoted instruction simply told the jury, in general terms, that it was the duty of the bus line to use reasonable care and caution in the operation of its buses so as to avoid injury to others, and it authorized the jury to find against the bus line if it believed from a preponderance of the evidence that a failure to exercise reasonable care proximately caused or contributed to the plaintiff's injury. By this instruction the jury was left to grope in the darkness, without any light to guide them, on the question of negligence of the bus line, and if in the nebulous maze of the wilderness the jury should grasp any act which it felt constituted a lack of reasonable care, it was authorized to adjudge the bus line guilty of negligence. It has been repeatedly held by this court that in negligence cases the instructions must confine the deliberation of the jury to the ground or grounds of negligence alleged and which are supported by substantial proof. We quote briefly from two of the cases so holding; many others are cited in these two cases.
In McDonough Motor Express, Inc., v. Spiers, 180 Miss. 78, 176 So. 723, 725, 177 So. 655, this Court said: "It will be observed that nowhere in the given instructions for either party were the grounds relied on in the declaration for recovery referred to. For appellee the jury were informed, in substance, that any negligence whatsoever in the manner in which appellant's truck was being driven which proximately contributed to appellee's injury would authorize a recovery. . . . It was the duty of appellee to have the court inform the jury what was necessary to make out the case stated in the declaration. This was not done. There was no obligation on the part of appellant to do it. The jury were left entirely at sea as to what character of negligence was necessary to be proven in order to authorize appellee to recover; just any negligence was sufficient under appellee's instructions, provided it proximately contributed to the collision. This defect was not cured by any instructions obtained by appellant. The jury were not required to go to the declaration, nor elsewhere, except the instructions given by the court, in order to ascertain the grounds relied on by appellee as the basis of recovery. Southern R. Co. v. Ganong, 99 Miss. 540, 55 So. 355; Baldwin v. McKay, 41 Miss. 358; Young v. Power, 41 Miss. 197; Yazoo M.V.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90."
And in New Orleans N.E.R. Co. v. Miles, 197 Miss. 846, 20 So.2d 657, 658, it is said: "When negligence is the subject of the action, the instructions must confine the verdict to the ground or grounds of negligence alleged and in support of which there has been substantial proof. 1 Reid's Brannon Instructions to Juries, p. 325, sec. 117. In Hines v. McCullers, 121 Miss. 666, 676, 83 So. 734, the Court said that this rule is elementary. It is elementary, and for obvious reasons, that an instruction which will allow a jury to find negligence without giving a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence is erroneous. In support of the rule as stated we need go no further than to cite the apt and forcible language of McGowen, J., in Graham v. Brummett, 182 Miss. 580, 591, 181 So. 721. To the same effect, however, is McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655, and Ross v. Louisville N.R. Co., 181 Miss. 795, 181 So. 133, 134 — it being pointed out in the latter case that an instruction which does not conform to the rule `not only opens the field to any sort of negligence but as well to what the particular jury under its particular notions might deem to be negligence, although not such under the established law of the land.' See also Yazoo M.V.R. Co. v. Aultman, 179 Miss. 109, 120, 173 So. 280."
From the foregoing views it follows that the judgment against Meridian City Lines, Inc., should be reversed and the cause remanded, but that the judgment against City of Meridian should be affirmed.
Affirmed as to City of Meridian. Reversed and remanded as to Meridian City Lines, Inc.