Swartzfager v. Southern Bell Tel. & Tel. Co.

110 So. 2d 380, 236 Miss. 322, 1959 Miss. LEXIS 322
CourtMississippi Supreme Court
DecidedApril 6, 1959
DocketNo. 41062
StatusPublished
Cited by2 cases

This text of 110 So. 2d 380 (Swartzfager v. Southern Bell Tel. & Tel. Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swartzfager v. Southern Bell Tel. & Tel. Co., 110 So. 2d 380, 236 Miss. 322, 1959 Miss. LEXIS 322 (Mich. 1959).

Opinion

Holmes, J.

The appellant, Mrs. Gladys Swartzfager, sued the appellees, Southern Bell Telephone and Telegraph Company and G. L. Martin, for damages for personal injuries which she sustained when a truck owned by the Southern Bell Telephone and Telegraph Company and driven by its employee, G. L. Martin, collided with an automobile which the appellant was driving.

The collision occurred between 2:30 and 3 o’clock on the afternoon of February 9, 1954, at the intersection of 10th Avenue and 12th Street in the City of Laurel. [325]*325Each, side charged the other with negligence and the instructions of the court submitted to the jury the issue as to the alleged negligence of the respective parties. In addition, the appellees asked and were granted an instruction under our comparative negligence statute (Section 1454, Code of 1942). The jury returned a verdict in favor of the appellant for $3,000. The appellant made a motion for a new trial, assigning among other grounds the inadequacy of the amount of damages awarded, and from an adverse ruling thereon, she appeals, seeking a new trial on the issue of damages only. There is no cross-appeal.

The appellant complain on this appeal of the inadequacy of the verdict, and of alleged error in instructions granted to the appellees, and in the court’s rulings on evidence. We have carefully considered the appellant’s complaints as too the instructions granted to the appellees and as to the court’s rulings on evidence, and are of the opinion that they are not well founded.

The only serious question presented for our solution is whether under the facts of this case and the instruction granted under our comparative negligence statute the verdict of the jury is so inadequate as to be deemed to evince bias and prejudice, justifying reversal.

Only two eye witnesses to the occurrence testified, namely, the appellant, Mrs. Gladys Swartzfager, and the appellee, G. L. Martin. The appellant testified that 10th Avenue runs generally in a north and south direction, and that 12th Street runs generally in an east and west direction; that on the occasion in question she was driving her automobile east on 12th Street approaching the intersection of 12th Street and 10th Avenue; that as she approached the intersection she was faced by a stop sign located at the intersection; that she stopped in obedience to the stop sign and looked both to the north and to the south on 10th Avenue; that she saw nothing approaching from the north but she saw [326]*326the truck of the appellees approaching the intersection from the south; that said truck, as she observed it, was about even with the third telephone pole south of the intersection, which distance was subsequently ascertained by measurement to be approximately 73 yards south of the intersection; that she then proceeded into the intersection without again looking to the south, and that her attention was next attracted by the sound of sliding of tires on the truck, and almost simultaneously therewith the truck ran into the side of her car, striking it at about the front fender near the front door; that the impact of the collision caused her head to strike the door post of her car and that she was rendered unconscious and remembered nothing thereafter until she regained consciousness in Oates’ Clinic, to which she was taken after the accident. The proof showed that the collision occurred in the southeast corner of the intersection at a point east of the center line of 10th Avenue. The proof further showed that the truck of the appellees knocked the automobile of the appellant a distance of 40 feet north on 10th Avenue from the point of impact, and that the appellant’s automobile came to rest on the east side of 10th Avenue with one of its front wheels in a ditch. The appellant further testified that she entered the intersection before the truck of the appellees reached the same, and that she had almost cleared the intersection when she was struck by the truck of the appellees.

The appellee, Gr. L. Martin, testified that at the time of the collision he was employed by the Southern Bell Telephone and Telegraph Company and was driving one of the Company’s trucks in the course of his employment, and was proceeding north on 10th Avenue in the City of Laurel; that he was running about 30 or 35 miles per hour; that he first saw Mrs. Swartzfager approaching along 12th Street when he was about 200 feet south of the intersection; that as Mrs. Swartzfager approached [327]*327the intersection, she slowed down as though she were going to stop hut that she did not stop hut accelerated her automobile, and that when he realized she was not going to stop he was about ten or fifteen feet from the intersection; that he hit his brakes hard and his truck skidded into the intersection and into Mrs. Swartzfager’s car. He further testified that his truck made skid marks on the pavement for a distance of 30 feet south from the point of impact. The testimony of other witnesses showed that the skid marks made by the company’s truck extended south from the point of impact a distance of approximately 73 feet.

It will be observed that the evidence was conflicting on the issue of negligence of the respective parties, and that under appropriate instructions this issue was submitted for the determination of the jury.

Since the appellees prosecuted no cross-appeal from the verdict and judgment of the court below, we must view as established the negligence and liability of the appellees. Dixon v. Breland, 192 Miss. 335, 6 So.2d 122.

The evidence with respect to the injuries sustained by appellant and the permanent effect thereof, and the extent of her damage is undisputed. The appellant testified that when she regained consciousness in Oates’ Clinic to which she was taken after the accident, she was “deathly sick” and nauseated; that the nausea continued for two days and nights and that she stayed in the Clinic about five days and was then permitted by the doctor to go home; that her nausea and headaches continued, and that as a matter of fact, they had continued up to the time of the trial, which was at the March 1958 term of the court, or a period of approximately four years from the date of the accident; that she was treated in the Clinic and after her return home by Dr. Charles R. Jenkins; that she was also treated [328]*328by Dr. Siegrist, a Laurel physician, and by Dr. H. Tharp Posey, a specialist of New Orleans, Louisiana.

The appellant further testified that from the time of the accident to the date of the trial she continued to suffer from headaches and nausea and was wholly incapacitated to do her household work and carry on her household chores; that at the time of the accident she was 40 years of age and was in good health and was able to do her household work, but that since her injury she had had to employ household help, entailing an expense of from $15 to $18 per week. The proof further showed that neither Mrs. Swartzfager nor her husband kept an accurate account of the expenses incurred by the appellant for doctors and medical bills and treatment. There is definite proof, however, that the appellant incurred a bill of $140 to Dr. Posey, a bill of $101 to meet the doctors and hospital bill at the time she was first injured, and a bill of $127 to a Dr. Ramsey, and a bill of $76 for x-rays, making a total of $444.

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Cite This Page — Counsel Stack

Bluebook (online)
110 So. 2d 380, 236 Miss. 322, 1959 Miss. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swartzfager-v-southern-bell-tel-tel-co-miss-1959.