Opinion
No. 41015.
February 2, 1959.
1. Damages — personal injuries — whiplash injury of cervical spine — $10,000 verdict not excessive.
In action growing out of automobile accident wherein 16-year old girl suffered a whiplash injury of the cervical spine, resulting in an incomplete tear of the ligaments holding the cervical vertebrae together, in the light of the testimony with reference to the severity of the neck injury, its probable permanent character, and the pain and suffering, Supreme Court could not say that $10,000 verdict was excessive.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, J.
P.D. Greaves, Gulfport; Frank J. Hammond, Moss Point, for appellant.
I. The Trial Court erred in granting to the plaintiff the following instruction: "The Court instructs the jury that as this is a civil case that the plaintiff, June Kraft, must prove her case by a preponderance of the evidence and is not required to prove her case beyond a reasonable doubt as is required in criminal cases, and the Court further instructs you `that a preponderance of the evidence' means the greater weight of the credible evidence." Brown v. Walker (Miss.), 11 So. 724; Graham v. Brummett, 182 Miss. 580, 181 So. 721; 53 Am. Jur., Sec. 555 p. 440; 88 C.J.S., Sec. 295 p. 804.
II. The Trial Court erred in granting plaintiff the following instruction: "The Court instructs the jury for the plaintiff, June Kraft, that it was the duty of the defendant's driver in operating a motor vehicle over the streets of Pascagoula, Mississippi, to keep a proper lookout for the plaintiff and others using said streets and highways, and if you believe by a preponderance of the evidence in this case that at the time and place in question the driver of the defendant's truck was not keeping a proper lookout for the plaintiff and others using said streets, and if you believe his failure to keep said proper lookout proximately caused or contributed to the injuries of the plaintiff, then it is your sworn duty to return a verdict for the plaintiff in this case. McKee v. Munn (Miss.), 5 So. 616; American Express Co. v. Jennings, 86 Miss. 329, 39 So. 374; Priestley v. Hays, 147 Miss. 843, 112 So. 788; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; Gulf, Mobile Ohio RR. Co. v. Smith, 210 Miss. 768, 50 So.2d 898; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 630; Harris v. McMullin, 212 Miss. 382, 54 So.2d 544; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Great Atlantic Pacific Tea Co. v. Mulholland (Miss.), 84 So.2d 504; Hamilton v. McCry, 299 Miss. 481, 91 So.2d 564; 53 Am. Jur., Secs. 556, 605 pp. 442, 477; 88 C.J.S., Sec. 280 p. 752.
III. The Trial Court erred in granting plaintiff the following instruction: "The Court instructs the jury for the plaintiff, June Kraft, if you find for her the form of your verdict may be, `We, the jury, find for the plaintiff, June Kraft, and assess her damages at ____ dollars'. This verdict you will write on a separate sheet of paper." Great Atlantic Pacific Tea Co. v. Mulholland, supra; 88 C.J.S., Secs. 327, 338 pp. 858, 890.
IV. The verdict of the jury is so excessive as to show bias and prejudice on the part of the jury in favor of the plaintiff and against the defendant, because the verdict of the jury is so large as to manifest passion, prejudice and favoritism when considered in the light of the contributory negligence on the part of the appellee and the character of the injuries sustained, and because the verdict and the judgment of the Court are contrary to the overwhelming weight of the testimony and evidence.
Merle F. Palmer, Pascagoula, for appellee.
I. Appellee's reply to Point I. Louisville N. RR. Co. v. Hall, 87 Ala. 708, 6 So. 277; Gabbert v. Treadway, 194 Miss. 435, 13 So.2d 157; Illinois Cent. RR. Co. v. Woods, 191 Miss. 628, 3 So.2d 826; Ivey v. State, 206 Miss. 734, 40 So.2d 609; Hatten v. State, 150 Miss. 441, 116 So. 813; Norris v. State, 154 Miss. 190, 122 So. 391; Alexander's Miss. Jury Instructions, Sec. 133 p. 62.
II. Appellee's reply to Point II. Golding v. State, 144 Miss. 298, 109 So. 731; Koestler v. Burton, 207 Miss. 40, 41 So.2d 362.
III. Appellee's reply to Point III. Koestler v. Burton, supra; Alexander's Miss. Jury Instructions, p. 33.
IV. Appellee's reply to Point IV. Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436.
Appellee June Kraft, by her father and mother as next friends, brought this suit in the Circuit Court of Jackson County for damages resulting from personal injuries received by her in a collision between a car driven by appellee and a truck of the appellant laundry. There was a judgment and verdict for plaintiff in the trial court for $10,000.
(Hn 1) The principal assignment of error is that the verdict is so excessive as to show bias and prejudice on the part of the jury. The driver of appellant's truck drove through a stop sign at an intersection, at a speed in excess of the maximum permitted in that area, and without keeping a proper lookout. As the result of these acts of negligence, the laundry truck ran into the left rear fender of the car of Miss Kraft, who was then 16 years of age. She was driving on the right side of the road and exercising due care. In other words, the jury manifestly found that the negligence of appellant's driver was the sole proximate cause of appellee's injuries. Only compensatory damages are involved.
In abbreviated form, the medical testimony warranted a finding that appellee suffered a whiplash injury of the cervical spine, resulting in an incomplete tear of the ligaments holding the cervical vertebrae together. The case was tried over a year after the collision. During that period she had 20 percent disability, and has a probable permanent disability of 10 percent to her neck and cervical spine. She has had continuing pain and discomfort in her neck and back since the accident. It is constant, has made her extremely nervous, and has affected her sleeping and eating. Knots appear and disappear on her neck at frequent intervals. The spinal damage constitutes a moderately severe injury to her neck and will probably be permanent. In the light of this and other testimony with reference to the severity of the neck injury, its probable permanent character, and the pain and suffering appellee has suffered, we certainly cannot say that the verdict of the jury is grossly excessive. We find no error in the instructions.
Affirmed.
Roberds, P.J., and Hall, Holmes and Gillespie, JJ., concur.