Opinion
Docket No. 6.
Submitted January 8, 1924.
Decided June 2, 1924.
Error to Hillsdale; Chester (Guy M.), J. Submitted January 8, 1924. (Docket No. 6.) Decided June 2, 1924.
Case by Charles Sweeney, guardian of John Gavigan, an incompetent person, against Moreland Bros. Company for personal injuries to plaintiff's ward. Judgment for plaintiff. Defendant brings error. Affirmed, conditionally.
E. Bruce Laing, J. Culver Riggs, and Baldwin Alexander, for appellant.
Merton Fitzpatrick and Paul W. Chase, for appellee.
This suit was brought by Charles Sweeney as guardian of John Gavigan, a mentally incompetent person, to recover damages for injuries received by Gavigan when he was struck by a motor truck belonging to the defendant, the injuries having been caused, it is alleged, by the negligence of defendant's driver. The defendant owns and operates an oil station in the city of Hillsdale. Sweeney operates a farm close by the city. Gavigan was employed by him as a farm laborer. At the time of the accident, late in the afternoon of November 18, 1921, Gavigan was leading a cow along the highway towards Hillsdale. As he was walking on a path along the graveled portion of the road, he was overtaken by one of the defendant's trucks, knocked down and run over. His injuries were serious, and he claims that they were due solely to defendant's negligence in driving its truck at an excessive rate of speed, in not having it under control, in not having it equipped with proper lights and brakes, in failing to sound an alarm or clang the horn as it approached, and in not seasonably turning to the left where there was ample room to pass. The defendant denies negligence and claims that the accident was unavoidable. The driver testifies that he did not see Gavigan until he was within 15 feet of him, because it was dark, there was mist on the windshield and his sight was blinded by the bright lights of an approaching automobile; that as soon as he observed the plaintiff he at once applied his brakes and used every effort to avoid running into him. At the close of the plaintiff's proofs the defendant asked for a directed verdict for the following reasons:
First. That the suit was brought by Charles Sweeney, guardian of John Gavigan, an incompetent person, as plaintiff, to recover damages suffered by Mr. Gavigan.
Second. That there was no proof of negligence on the part of defendant, or its servants, which would warrant the court in submitting the question to the jury.
The court refused to direct a verdict and submitted the case to the jury. The plaintiff received a verdict and judgment for $6,499.50. The defendant brings error.
The questions involved relate to the admission of testimony, the denial of a motion to direct a verdict, refusal of requests to charge, the charge as given and the denial of a motion for a new trial. We have examined all of the errors alleged as to the admission of testimony. It is not necessary here to comment on any save that concerning Mr. Gavigan's loss of control of his urinary organs. The defendant's objection to this testimony was based upon the claim that the declaration gave no notice of any such injury. The question raised is not new and calls for no extended discussion. The circuit judge correctly held that it was controlled by Grogitzki v. Detroit Ambulance Co., 186 Mich. 378, and cases therein cited.
The first reason assigned by counsel for a directed verdict, viz., that the action should have been brought in the name of John Gavigan instead of in the name of the guardian, raises a question that should have been presented on motion to dismiss before plea. See Newton v. Railway, 163 Mich. 373. However, the declaration fully set forth that the injuries were those of John Gavigan and shows that the cause of action was his. It may therefore be amended without in any manner altering the issue. In the matter of amendments our statute is very liberal.
"Under its provisions it is the duty of the appellate court, as well as of the trial court, to make such amendments as justice requires, having due regard for the rights of parties." Fervette v. Railroad Co., 175 Mich. 653, 675.
We will therefore treat the amendment as made here to meet defendant's objection.
A further reason assigned for a directed verdict was that there was no evidence of the defendant's negligence. The plaintiff's evidence tends to show that after the truck hit Gavigan it traveled a distance of 160 feet, mostly up grade, before the driver was able to bring it to a stop. The driver says that he stopped it within 27 feet, and that he was driving about 12 miles an hour. This testimony made a question for the jury as to the speed of the truck, and whether the driver had it under control. It is undisputed that the brakes did not work, that the horn was not sounded, and that no attempt was made to avoid the accident by turning to the left. As to the efficiency of the lights, the testimony was in conflict. There was ample evidence of defendant's negligence and the court did not err in submitting it to the jury.
Complaint is made that the court erred in neglecting to instruct the jury that in respect to damages for future pain and suffering the amount allowed should be limited to the present worth. As to the necessity for such an instruction see Denman v. Johnston, 85 Mich. 387. However, as this error goes only to the amount of the verdict and as the evidence of future pain and suffering was very slight, we think the rights of the defendant will be fairly protected by a reduction of $500 from the verdict rendered.
It is insisted by the defendant that the verdict should be set aside because it is excessive. This question was urged on a motion for a new trial, but the court refused to disturb the verdict for that reason. There is nothing in the record to indicate that the verdict was not the result of a fair consideration of the evidence. The testimony shows that the plaintiff was seriously, painfully and permanently injured; that prior to the accident he was physically strong and able-bodied, that he is now permanently crippled, that he will never be able to walk upright again, and that he is unable to control his urinary organs. The evidence is that he was 40 years of age at the time of the accident, and his attending physician testifies, "that as he gets older the injury is going to be more of a handicap to him about walking or doing anything." In view of the evidence, we think the verdict was not excessive. The judgment will be affirmed if the plaintiff within ten days shall file a consent that it be reduced to $5,999.50; otherwise it will be reversed and a new trial granted. Neither party will have costs.
CLARK, C.J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.