DUNN, Justice.
Plaintiff Kirk Bertness appeals from a judgment entered in the Circuit Court of the Fourth Judicial Circuit denying recovery for personal injuries allegedly suffered in an automobile accident. We reverse.
On the evening of February 22, 1975, at approximately 9 p. m., Bertness was a passenger in a vehicle driven by Leonard L. Van Pelt. The vehicle was being driven in an easterly direction on South Dakota Highway 34, approximately one mile west of the city limits of Madison, Lake County, South Dakota. At the same time, defendant Craig A. Hanson was driving a 1967 Pontiac Lemans automobile on Highway 34 in an easterly direction. The Hanson vehicle collided into the rear end of the vehicle in which Bertness was a passenger. At the time of the accident, Bertness was occupying the backseat.
Bertness first sought medical attention on February 25, 1975, when he complained of a stiff and sore neck and was treated by Dr. Homer Stensrud, a medical doctor in Madison, South Dakota. .At that time, Dr. Stensrud thought that Bertness had a muscle spasm problem and referred him to the physical therapist at the Madison Clinic. This treatment was carried out in February and March of 1975. Dr. Stensrud saw Bertness again on March 26, 1975, when Bertness complained of having pain in his mid-back area. X rays were taken at that time, and they revealed an abnormality between the eighth and ninth dorsal vertebrae and a very slight disc narrowing. Bertness continued receiving therapy through April, May, June, July and August of 1975.
Bertness continued to complain of pain in his neck and back, and he was referred to Dr. Dennis Johnson, an orthopedic specialist at the Van Demark Clinic in Sioux Falls, South Dakota. He was seen by Dr. Johnson on October 5,1976, at which time Dr. Johnson examined X rays taken on August 19, 1976, by Dr. Bastían, a doctor of chiropractic in Madison, South Dakota. Dr. Johnson also took an X ray, which revealed the problem at the ninth vertebra, as well as wedging and narrowing as had been noted by Dr. Stensrud. Dr. Johnson further noted some ligamentous injury at that time. Another X ray was taken on December 14, 1976, and it, too, revealed increased narrowing of the disc space between the eighth and ninth thoracic vertebrae. On March 15, 1978, another X ray was taken, and Dr. Johnson made a disability evaluation determining that Bertness had a limitation of lateral flexion of the neck to the right thirty degrees and to the left thirty-three degrees (the normal flexion of the neck is forty-five degrees), together with tenderness in the neck and pain and tenderness over the area of the wedged ninth vertebra. Dr. Johnson determined that Bertness had a permanent partial disability of fifteen percent of the whole man.
Testimony offered at trial established that Bertness was involved in a number of mishaps subsequent to the accident in question. Specifically, Bertness testified that: [318]*318(1) he was involved in a minor automobile accident while traveling five m. p. h. sometime in 1975 after the accident in question; he sustained no injury, (2) he was involved in a similar minor accident in the winter of 1976; he sustained no injury, (3) he was involved in two automobile accidents in April 1977 wherein the automobiles in which he was riding rolled over; he sustained no injuries; (4) an automobile he was driving struck a deer sometime in 1977; he sustained no injury, and (5) on an unknown date he tipped over on a stationary motorcycle and sustained a scratched wrist.
The trial court found as a matter of law that Hanson was negligent and that his negligence was the proximate cause of the accident. The court instructed the jury that there was no eviderice of any contributory negligence on the part of Bertness in regard to the proximate cause of the accident.
By affidavit and motion in limine, Bertness sought to eliminate any testimony regarding the above-mentioned subsequent accidents from the jury’s consideration, but this motion was denied. He made a motion to strike all evidence relating to thesé accidents from the record when he moved for' a ■directed verdict, but these motions were also denied. His objections to various instructions that allowed the jury to consider whether the subsequent accidents aggravated his injuries were overruled. Finally, his motions for judgment n.o.v. and for a new trial were also denied. This appeal followed.
We find that the trial court erred in admitting evidence of accidents that occurred subsequent to the accident in question. Hanson asserted as an affirmative defense that Bertness had failed to use reasonable care to avoid aggravating his injury subsequent to the accident in question. There was no evidence upon which reasonable minds could have concluded that Hanson had met his burden of proving such lack of reasonable care by a preponderance of the evidence.
The deposition of Dr. Stensrud, which was read into evidence, established that the X rays taken on March 26, 1975 (slightly over a month after the accident), revealed the injury that forms the basis of this lawsuit. No evidence whatsoever was elicited to the effect that Bertness had been involved in any type of accident between the initial accident of February 22, 1975, and the March 26th X rays. It is true that Dr. Stensrud did not immediately notice any injury on the X rays, but his re-examination of the same X rays after subsequent visits by Bertness to Drs. Bastian and Johnson convinced him that the irregularity between the eighth and ninth vertebrae was indeed present.
Both Dr. Johnson and Dr. Bastian testified that there was a deterioration of the injury. Dr. Stensrud testified that the greater amount of deterioration occurred between the time of his X rays (March 26, 1975) and the X rays taken by Dr. Bastian (August 1976). In other words, the X rays taken by Dr. Bastian revealed that the injury had worsened since the X rays of March 26, 1975. Dr. Johnson, who had the benefit of the X rays taken by Drs. Stensrud and Bastian, testified that he took X rays on four occasions: October 5, 1976, December 14, 1976, May 1977, and March 15, 1978. Dr. Johnson testified that this series of X rays showed that no worsening of the injury took place after October 5,1976, and that the injury actually improved somewhat from that date. Both Dr. Johnson and Dr. Stensrud testified that the injury revealed on their X rays and the X rays of Dr. Bastian was the same injury.
It is crucial to note that the only accident that occurred from the time the first X rays were taken (March 26, 1975) until the time the X rays were taken by Dr. Johnson (October 5, 1976) was the accident in which Bertness’ automobile, while traveling 5 m. p. h., struck a parked automobile. The total extent of damage in that accident was that the parked car had its taillight knocked out. Bertness testified that he received no injury in this accident, which was literally a “fender bender,” and no evidence to the contrary was elicited. The remainder of the subsequent accidents occurred after October 5, [319]*3191976, and Dr. Johnson testified that the injury had not worsened, but rather, the condition had actually improved after October 5, 1976.
The only evidence Hanson could elicit from Dr. Johnson and Dr. Stensrud was that Bertness had never informed them of these subsequent accidents and that it was normal for patients to offer such information. Neither of the doctors testified that knowledge of these accidents would change his opinion as to the causation of the injury.
Free access — add to your briefcase to read the full text and ask questions with AI
DUNN, Justice.
Plaintiff Kirk Bertness appeals from a judgment entered in the Circuit Court of the Fourth Judicial Circuit denying recovery for personal injuries allegedly suffered in an automobile accident. We reverse.
On the evening of February 22, 1975, at approximately 9 p. m., Bertness was a passenger in a vehicle driven by Leonard L. Van Pelt. The vehicle was being driven in an easterly direction on South Dakota Highway 34, approximately one mile west of the city limits of Madison, Lake County, South Dakota. At the same time, defendant Craig A. Hanson was driving a 1967 Pontiac Lemans automobile on Highway 34 in an easterly direction. The Hanson vehicle collided into the rear end of the vehicle in which Bertness was a passenger. At the time of the accident, Bertness was occupying the backseat.
Bertness first sought medical attention on February 25, 1975, when he complained of a stiff and sore neck and was treated by Dr. Homer Stensrud, a medical doctor in Madison, South Dakota. .At that time, Dr. Stensrud thought that Bertness had a muscle spasm problem and referred him to the physical therapist at the Madison Clinic. This treatment was carried out in February and March of 1975. Dr. Stensrud saw Bertness again on March 26, 1975, when Bertness complained of having pain in his mid-back area. X rays were taken at that time, and they revealed an abnormality between the eighth and ninth dorsal vertebrae and a very slight disc narrowing. Bertness continued receiving therapy through April, May, June, July and August of 1975.
Bertness continued to complain of pain in his neck and back, and he was referred to Dr. Dennis Johnson, an orthopedic specialist at the Van Demark Clinic in Sioux Falls, South Dakota. He was seen by Dr. Johnson on October 5,1976, at which time Dr. Johnson examined X rays taken on August 19, 1976, by Dr. Bastían, a doctor of chiropractic in Madison, South Dakota. Dr. Johnson also took an X ray, which revealed the problem at the ninth vertebra, as well as wedging and narrowing as had been noted by Dr. Stensrud. Dr. Johnson further noted some ligamentous injury at that time. Another X ray was taken on December 14, 1976, and it, too, revealed increased narrowing of the disc space between the eighth and ninth thoracic vertebrae. On March 15, 1978, another X ray was taken, and Dr. Johnson made a disability evaluation determining that Bertness had a limitation of lateral flexion of the neck to the right thirty degrees and to the left thirty-three degrees (the normal flexion of the neck is forty-five degrees), together with tenderness in the neck and pain and tenderness over the area of the wedged ninth vertebra. Dr. Johnson determined that Bertness had a permanent partial disability of fifteen percent of the whole man.
Testimony offered at trial established that Bertness was involved in a number of mishaps subsequent to the accident in question. Specifically, Bertness testified that: [318]*318(1) he was involved in a minor automobile accident while traveling five m. p. h. sometime in 1975 after the accident in question; he sustained no injury, (2) he was involved in a similar minor accident in the winter of 1976; he sustained no injury, (3) he was involved in two automobile accidents in April 1977 wherein the automobiles in which he was riding rolled over; he sustained no injuries; (4) an automobile he was driving struck a deer sometime in 1977; he sustained no injury, and (5) on an unknown date he tipped over on a stationary motorcycle and sustained a scratched wrist.
The trial court found as a matter of law that Hanson was negligent and that his negligence was the proximate cause of the accident. The court instructed the jury that there was no eviderice of any contributory negligence on the part of Bertness in regard to the proximate cause of the accident.
By affidavit and motion in limine, Bertness sought to eliminate any testimony regarding the above-mentioned subsequent accidents from the jury’s consideration, but this motion was denied. He made a motion to strike all evidence relating to thesé accidents from the record when he moved for' a ■directed verdict, but these motions were also denied. His objections to various instructions that allowed the jury to consider whether the subsequent accidents aggravated his injuries were overruled. Finally, his motions for judgment n.o.v. and for a new trial were also denied. This appeal followed.
We find that the trial court erred in admitting evidence of accidents that occurred subsequent to the accident in question. Hanson asserted as an affirmative defense that Bertness had failed to use reasonable care to avoid aggravating his injury subsequent to the accident in question. There was no evidence upon which reasonable minds could have concluded that Hanson had met his burden of proving such lack of reasonable care by a preponderance of the evidence.
The deposition of Dr. Stensrud, which was read into evidence, established that the X rays taken on March 26, 1975 (slightly over a month after the accident), revealed the injury that forms the basis of this lawsuit. No evidence whatsoever was elicited to the effect that Bertness had been involved in any type of accident between the initial accident of February 22, 1975, and the March 26th X rays. It is true that Dr. Stensrud did not immediately notice any injury on the X rays, but his re-examination of the same X rays after subsequent visits by Bertness to Drs. Bastian and Johnson convinced him that the irregularity between the eighth and ninth vertebrae was indeed present.
Both Dr. Johnson and Dr. Bastian testified that there was a deterioration of the injury. Dr. Stensrud testified that the greater amount of deterioration occurred between the time of his X rays (March 26, 1975) and the X rays taken by Dr. Bastian (August 1976). In other words, the X rays taken by Dr. Bastian revealed that the injury had worsened since the X rays of March 26, 1975. Dr. Johnson, who had the benefit of the X rays taken by Drs. Stensrud and Bastian, testified that he took X rays on four occasions: October 5, 1976, December 14, 1976, May 1977, and March 15, 1978. Dr. Johnson testified that this series of X rays showed that no worsening of the injury took place after October 5,1976, and that the injury actually improved somewhat from that date. Both Dr. Johnson and Dr. Stensrud testified that the injury revealed on their X rays and the X rays of Dr. Bastian was the same injury.
It is crucial to note that the only accident that occurred from the time the first X rays were taken (March 26, 1975) until the time the X rays were taken by Dr. Johnson (October 5, 1976) was the accident in which Bertness’ automobile, while traveling 5 m. p. h., struck a parked automobile. The total extent of damage in that accident was that the parked car had its taillight knocked out. Bertness testified that he received no injury in this accident, which was literally a “fender bender,” and no evidence to the contrary was elicited. The remainder of the subsequent accidents occurred after October 5, [319]*3191976, and Dr. Johnson testified that the injury had not worsened, but rather, the condition had actually improved after October 5, 1976.
The only evidence Hanson could elicit from Dr. Johnson and Dr. Stensrud was that Bertness had never informed them of these subsequent accidents and that it was normal for patients to offer such information. Neither of the doctors testified that knowledge of these accidents would change his opinion as to the causation of the injury. Both doctors maintained that based upon reasonable medical certainty, the accident of February 22, 1975, in which Hanson was the negligent driver, was the cause of Bertness’ injury. Each doctor agreed that the roll-over accidents, the striking of the deer, and the motorcycle tipover were accidents that could possibly give rise to a similar injury in a given situation. They were medically certain to a reasonable degree, however, based upon the above-mentioned X rays, that the original accident was the cause of the injury. Furthermore, it is important to note that neither doctor ever testified that there was even a remote possibility that the “fender bender” accident, which is the only accident that occurred during the period when Bertness’ injury deteriorated somewhat, could have caused or aggravated his injury.
It becomes evident that the trial court should have directed a verdict in favor of Bertness regarding the issue of proximate cause. The court had found as a matter of law that Hanson was negligent, that his negligence caused the accident, and that Bertness was free of contributory negligence. We have explained that the only subsequent accident of any relevance was the “fender bender” in the winter of 1975. In regard to this minor accident, neither doctor testified that it could even remotely be the cause of this type of injury in this situation or any situation. Bertness testified that he suffered no injury from this minor accident, and absolutely no evidence to the contrary was presented. It was error to admit the subsequent accidents into evidence because they lacked any probative value and were prejudicial. SDCL 19-12-3 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Here, the evidence of accidents after October 5, 1976, was not probative whatsoever, but it was prejudicial in that it misled the jury into believing that these accidents were to be considered on the question of proximate cause.
Hanson had the burden, of proving that any of these subsequent accidents caused or aggravated Bertness’ injury. Kowing v. Williams, 75 S.D. 454, 67 N.W.2d 780 (1954). He failed to offer any proof to that effect. Where an expert states that a certain action may possibly cause a certain injury in a given situation without stating that the causal connection exists in the case at issue, such evidence does not raise an issue for the trier of fact. Mabrier v. A. M. Servicing Corporation of Raytown, 161 N.W.2d 180 (Iowa 1968). Reasonable minds viewing this evidence in a light most favorable to Hanson could come to but one conclusion: Hanson’s negligence caused Bertness’ injury.
Defendant finally contends that the evidence of subsequent accidents was admissible to counter the testimony of plaintiff’s experts on damages. Plaintiff’s expert economist equivocated at trial when asked if such accidents could have a bearing in calculating loss of income, etc., to be suffered in the future by a reasonable, average human being with plaintiff’s background and education. Upon remand, with the jury foreclosed from conjecture on the issue of proximate cause, the trial court may conclude that accidents of this type and frequency would alter the calculation of damages based upon the “average human being” concept and thus be admissible into evidence. Likewise, the evidence that Bertness played hockey and went skiing may be allowed on the damages question if found to be probative.
[320]*320The judgment is reversed and the cause is remanded with directions to enter a directed verdict in favor of Bertness on the causation issue. Further proceedings as to damages are in order.
MORGAN and HENDERSON, JJ., concur.
WOLLMAN, C. J., and FOSHEIM, J., dissent.