Opinion
May 2, 1952. Rehearing Denied May 23, 1952.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Durant Durant, Miami, for appellants.
Murray Sams, Jr., William Clinton Green and Nichols, Gaither Green, all of Miami, for appellees.
This appeal results from an action for personal injuries to a passenger on a bus operated for hire by the appellants.
Although there are several assignments of error, there are only two questions, to-wit, (1) Did the evidence support the findings of the jury as to liability, and (2) Was there sufficient evidence to support the amount of the verdicts?
This case presents no new questions of law. The appellants offered no testimony in the court below and the verdicts are the result of the testimony offered only by the appellees. Mrs. Scott was a passenger on the bus and was standing because the bus was crowded; it was being operated on the outside, or through-traffic, lane, the other traffic lane going in the same direction being next to the sidewalk. As the bus approached the corner of an intersection, the evidence shows that it cut sharply from the outside lane toward the curb and in doing so struck the rear end of an automobile which was being operated by a city detective traveling in the same direction and almost parallel with the bus. The automobile was slightly ahead of the bus and as the bus cut sharply to the right, it was brought to a sudden stop. The jury had a right to infer and conclude that the force of the turning, the collision with the automobile, and the sudden stopping of the bus, caused Mrs. Scott, who was holding onto an overhead bar with one hand, to lose her grip and be thrown violently to the floor. Mrs. Scott testified to that effect. She was carrying a package in one hand and hanging onto the support with the other hand. She fell to the floor and as a result of the fall, she claimed that she received an injury to the spinal nerve roots which caused her great and permanent disability and suffering.
The ordinance of the city with reference to moving from one lane of traffic to another is as follows:
"When any street or roadway in the city shall have been divided into three or more lanes clearly marked for traffic, the following rules, in addition to all others consistent herewith, shall apply:
"`A. Driving within single lane. Any vehicle travelling thereon shall be driven as nearly as is practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made in safety;'"
A map, or plat, showed the location of this accident and the testimony showed a violation of the above ordinance.
It is urged by the appellants that Mrs. Scott was guilty of contributory negligence because in her childhood she had rheumatic fever which caused a rheumatic heart; it was claimed that she was a heavy person and due to this rheumatic heart condition she sometimes had fainting spells and with the knowledge of her condition, she was guilty of contributory negligence because she boarded a crowded bus and did not occupy a seat which it is claimed was available to her.
No seat was available to Mrs. Scott, and, as a matter of law, it is not contributory negligence for an obese, heavy person, with knowledge that she had rheumatic fever in her childhood, which produced a rheumatic heart, to board a crowded bus. This question was properly withdrawn from the jury.
The only other question is as to the amount of damages. The jury made an award to Mrs. Scott of $30,000 and to Mr. Scott of $15,000.
Mrs. Scott was 35 years of age; she was an ordinary housewife capable of doing all of the ordinary things that a housewife generally does. She enjoyed the companionship, comfort and consortium of her husband. She prepared meals for the family, did her own washing, ironing and housework. She had given birth to two children in the normal way and without any apparent difficulty. She was enjoying life as a normal person with the only limitation upon her activities that she could not overwork or overexert herself. She knew of her heart condition and for that reason was careful. She had to take medication for this heart condition. Her normal life expectancy was approximately 33 years. All of the facts with reference to Mrs. Scott's condition were before the jury and in estimating her life expectancy, the jury was not bound by the mortality tables, but they were permitted to consider them together with all the other evidence bearing on her condition and life expectancy. She cared for her children in the normal way and did many other things that a mother and housewife would naturally do.
After the accident the testimony was that she had a permanent injury to her back, which consisted of a ruptured intervertebral disc, a damaged and injured nerve root; she was compelled to wear a back brace; she drags her left foot and is somewhat crippled and handicapped and totally disabled from doing all of the things which she did prior to the injury. It is unnecessary to go into all of this testimony in detail. The testimony shows that due to her heart condition, no doctor would recommend an operation in an attempt to remedy her spine condition and, therefore, it will remain permanent. The medical testimony was that she will continue to have pain throughout her life.
With reference to the amount awarded to the husband, the jury was justified from the evidence in finding that consortium was lost, or materially affected, and that he had lost her services as a housekeeper and a housewife, and that she was unable to care for the children; the husband had to employ a housekeeper to take care of the house and to assist Mrs. Scott and the children, at an expense of $7 per day. Due to the fact that the wife's condition is incurable and inoperable, this condition will exist for an indefinite period of time. He had incurred hospital bills since the accident and other bills, such as doctor's bills and medical bills, and would continue to incur them in the future.
The question of liability and the amount of the verdicts were fairly submitted to the jury. They saw the parties, heard the evidence, observed their demeanor on the witness stand, and rendered the verdicts. The Circuit Judge had the same opportunity to hear and observe the witnesses which the jury had. On motion for new trial the Circuit Judge put the stamp of his approval upon the verdicts.
We find no reversible error in the record.
Affirmed.
SEBRING, C.J., THOMAS, J., and DICKINSON, Associate Justice, concur.