{ "id": 8718072, "name": "Worth James Construction Company, a Corporation v. Jean Herring", "name_abbreviation": "Worth James Construction Co. v. Herring", "decision_date": "1967-03-13", "docket_number": "5-4135", "first_page": "156", "last_page": "168", "citations": [ { "type": "official", "cite": "242 Ark. 156" }, { "type": "parallel", "cite": "412 S.W.2d 838" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "271 Pac. 949", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "186 Ark. 611", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724419 ], "opinion_index": 0, "case_paths": [ "/ark/186/0611-01" ] }, { "cite": "127 N.W. 2d. 741", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "63 S.E. 2d. 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727699 ], "opinion_index": 0, "case_paths": [ "/ark/240/0258-01" ] }, { "cite": "86 S. W. 2d. 28", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "86 S. W. 2d. 411", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 389", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418520 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/191/0389-01" ] }, { "cite": "233 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691765 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/233/0191-01" ] }, { "cite": "102 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354016 ], "opinion_index": 0, "case_paths": [ "/ark/102/0137-01" ] }, { "cite": "59 S. W. 951", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "68 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334122 ], "opinion_index": 0, "case_paths": [ "/ark/68/0444-01" ] }, { "cite": "242 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717643 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/242/0083-01" ] }, { "cite": "57 S. W. 2d. 969", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "247 Ky. 758", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 8514895 ], "opinion_index": 0, "case_paths": [ "/ky/247/0758-01" ] }, { "cite": "142 N. W. 525", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "94 Neb. 119", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4458065 ], "opinion_index": 0, "case_paths": [ "/neb/94/0119-01" ] }, { "cite": "68 Kan. 252", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 8860442 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/68/0252-01" ] }, { "cite": "39 Ind. 501", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1400132 ], "opinion_index": 0, "case_paths": [ "/ind/39/0501-01" ] }, { "cite": "201 P. 361", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 } ], "analysis": { "cardinality": 950, "char_count": 19297, "ocr_confidence": 0.543, "pagerank": { "raw": 2.975443232313162e-07, "percentile": 0.850635500370871 }, "sha256": "67b7183db2d535ebf8638125e3bace23b522a3ccef92dd6ec0c13e7451913148", "simhash": "1:ff25100ae96cb3e8", "word_count": 3365 }, "last_updated": "2023-07-14T15:00:12.038660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Worth James Construction Company, a Corporation v. Jean Herring" ], "opinions": [ { "text": "J. Fred JoNes, Justice.\nWe are called on here to determine whether the trial court abused its discretion in setting aside a verdict and granting a new trial on motion of the appellee who had been awarded $2,500.00 in an action for personal injuries. Indeed we are called on to determine whether or not the trial court even had any discretion in the matter where the action is for injury to the person, but having concluded that the verdict she. dd have been set aside and a new trial granted for error in instruction, the trial court\u2019s discretion becomes a minor issue.\nMrs. Jean Herring filed suit in the Pulaski County Circuit Court against Worth James Construction Company alleging damages for personal injuries as a proximate result of the negligence of defendant\u2019s truck driver in driving defendant\u2019s truck into the rear of plaintiff\u2019s automobile as she slowed down to make a right hand turn from the highway.\nThe case was tried to a jury and a verdict was returned for plaintiff in the amount of $2,500.00. The verdict was s.et aside by the trial court and a new trial granted on motion of the plaintiff, for the reason that the verdict was contrary to the law, contrary to the evidence, contrary to the law and the evidence, and for the further reason that an instruction given by the court over the objection of the plaintiff, was error. The defendant has appealed and relies on one point:\n\u201cIt was error for the trial court to set aside the verdict and judgment in favor of appellee and grant her a new trial.\u201d\nOn November 23, 1964, the appellee and the appellant\u2019s driver were d iving their respective vehicles the same direction on .Iwdney Parham Road in Pulaski County with appellant\u2019s truck behind appellee\u2019s automobile. Appellant\u2019s truck .driver \u201cspeeded up\u201d to cross a bridge before an oncoming automobile came onto the bridge and after observing appellee slowing down ahead of him in preparation to turn from the roadway, appellant\u2019s driver skidded the truck sixty-six feet in an effort to stop, but was unable to avoid striking appellee\u2019s automobile.\nAppellee experienced neck, head and shoulder pains immediately following the collision. She was nervous and upset and the following morning she was vomiting and went to the doctor who prescribed muscle relaxants and medication for pain and to induce rest. This condition persisted and about two and a half weeks, later appellee developed a \u201clump\u201d or choking sensation in her throat which was also associated with vomiting. She also began experiencing low back pain, as. well as the continued pain in the shoulders, head and neck.\nThe appellee in this case had injured her neck in an automobile accident in January 1961. She had injured her back trying to start a power lawn mower on July 19 or 20, 1964, and she had experienced a period of vomiting over a period of a week to ten days during November and December 1961.\nOn December 27, 1964, appellee was operated on for hiatal hernia and on March 1, 1965, for herniated intervertebral disc in the lumbar area of the back. The medical evidence is. to the effect that neither of these conditions was caused by the collision of November 23, 1964, but that the symptoms of both conditions were aggravated by the collision.\nIn connection with appellee\u2019s operation for the hia-tal hernia, an incision was made from beneath the left breast to the right side of the abdomen. An additional incision was made in the left side through which a tube was inserted into the stomach' for drainage following the operation, and appellee was fed intraveneously for a period of five days.\nAbout the second or third day following the operation, appellee noticed the loss of sensation in two fingers on her right hand. The evidence is uncontroverted that this symptom was attributable to an injury in the nature of a bruise to the ulna nerve and the severity of this condition continued to increase until by April 14, 1965, there was an 80 to 100 per cent loss of the function of the ulna nerve in appellee\u2019s right arm. Although there had been considerable improvement, the function of this nerve 1 ^d not been completely restored at the time of trial, ana this damage to the ulna nerve was an element of damage alleged by appellee in her amended complaint.\nAppellant answered that the injury to the ulna nerve \u201cwas a result of the improper positioning of the plaintiff on the operating table in the recovery room or in her bed all in the course of or subsequent to an operation for a hernia repair which took place on December 30, 1964, and the improper positioning was an intervening event completely independent of any conduct of the defendant or its agents, and no act of the defendant or its agents was a proximate cause of said damage.\u201d\nDr. Kenneth Jones and Dr. Jack Downs were the only doctors who had treated the appellee and were the only doctors who testified at the trial.\nAs to the ulna nerve injury, Dr. Jones testified that lie. didn\u2019t see appellee when she first developed the ulna nerve symptoms and that he didn\u2019t know how it came on, but that he couldn\u2019t explain it on the basis of a rear end collision; that it came on during the period of time appellee was in the hospital for hernia surgery and that it is reasonable to assume something happened during that period of time. That any patient who is confined to bed may encounter these complications from simply being in bed and ushing themselves about.\nAs to the ulna nerve injury, Dr. Downs, testified that several days, he didn\u2019t remember exactly how many days,\n\u201c* * * after Mrs. Herring\u2019s surgery she complained of some numbness and loss of sensation of tbe distribution of her right ulna nerve and that is something that happens on occasions, occasionally in bed-fast patients and there is not really anything that can be done about it. It is due to the pressure that is put on the nerve either from lying still with one arm extended for perhaps intravenous medication running in the arm or scooting around on the elbows in bed.\u201d\n* # *\n\u201cI think it is calculated risk or hazard like any other hazard the patient assumes or risks that they assume when under surgery or enter the hospital or become immobile, it is a hazard of having to lie? down and be still.\u201d\nDr. Downs testified that it would be a fair assumption that the injury to the ulna nerve arose out of the surgery and treatment for the hiatal hernia, and on cross examination, Dr. Downs testified as follows:-\n\u201cQ All right now just briefly now about this ulna nerve problem. I believe that you told me when I took your deposition that the ulna nerve problem probably dates back to the incident that occurred on the operating table, in the recovery room or within a few days after the operation while still in bed. Is that correct?\nA Yes.\nQ How would that generally happen, by. the \"elbow getting on a sharp place and putting pressure on the nerve. Is that correct?\nA It wouldn\u2019t have to be a sharp place. The ulna nerve is very superficial at the back side of the elbow and pressure on a mattress or anything pressure on the nerve in that area for a while. We don\u2019t know exactly how long it ,takes to bruise the nerve and again there are all degrees of this thing which would cause the injury.\nQ You don\u2019t mean a flat curve, you mean a corner?\nA Well probably a corner.\nQ Normal lying in bed would not cause this?\nA I think if you had a patient who was scooting around on their elbow in bed as patients certainly do after surgery that might be of sufficient severity to cause it. It is hard.to pin the thing down.\nQ I know but just the arm lying in normal position on a bed would not cause it?\nA I think if that arm was pinned down with intravenous solution running in it for two or three hours it certainly would cause .it.\u201d\n\u25a0 At the close of the evidence, including the above medical testimony, as appellee\u2019s requested instruction No. 9, the court gave A. M. I. instruction 501 on \u201cproximate cause\u201d as follows:\n\u201cThe law frequently uses the expression \u2018proximate cause,\u2019- with which you may not be familiar. When I use the expression \u2018proximate cause,\u2019 I mean a cause which, in a .natural and continuous sequence, produces damage and without which the damage would not have occurred.\n\u201c [This does not mean that the law recognizes only one proximate cause of damag\u2019e. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.] \u201d\nAnd over appellee\u2019s objections,.the trial court gave as appellant\u2019s instruction No. 4, A. M. I. instruction No. 503, as follows:\n\u201cIf, following any act or omission of a party, an event intervened which, in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.\u201d\nThe appellant first argues that as a matter of law the trial court had no discretion in setting the verdict aside and granting a new trial in this case, and in support of its argument, cite the following cases:\n\u201cWoodard v. Sanderson, 83 Ok. 173, 201 P. 361 ; Sharpe v. O\u2019Brien, 39 Ind. 501 ; Metropolitan Street R. Co. v. O\u2019Neil, 68 Kan. 252, 74 Pac, 1105 ; Blakely v. Omaha & C. B. Street R. Co., 94 Neb. 119, 142 N. W. 525.\u201d\nArk. Stat. Ann. \u00a7 27-1901 (Repl. 1962) defines \u201cnew trial\u201d and sets out eight grounds for a .new trial, the fifth one being as follows:\n\u201cFifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property.\u201d\nThe next section, Ark. Stat. Ann. \u00a7 27-1902 (Repl. 1962) is as follows:\n\u201cA new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.\u201d\nThe Oklahoma, Indiana, Kansas and Nebraska statutes under, which the cases cited by appellant were decided, contained the same provision as Ark. Stat. Ann. \u00a7 27-1902 supra, and the Supreme Courts of those states interpreted this provision exactly as appellant argues that we should interpret it in this case.\nThis provision in many of the state statutes was a carry over from the common law, and in Oklahoma, Indiana, Kansas and Nebraska, has been changed or repealed by later statutory enactment. (See also Drury v. Franks, 247 Ky. 758, 57 S. W. 2d. 969).\nWe are cited no case, and have found none, in which this court has followed or refused to follow the decisions of the Oklahoma, Indiana, Kansas and Nebraska Courts in their interpretation of this provision of their statutes, and because of the rule laid down in our own decisions, where other error appears in the record, we find it unnecessary to follow, or refuse to follow, the decisions from other states in this case.\nIn a case such as this, however, where no other error appears in the record, we think out statute \u00a7 27-1902 might well he interpreted to mean that\n\u201ca new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation (where injury is not susceptible -of definite pecuniary measurement such as in mental anguish, pain and suffering or damage to the reputation) nor in any other action where the damages shall equal the actual pecuniary injury sustained.\u201d\nIt does not follow that such interpretation should necessarily apply however, where the injury is susceptible of definite pecuniary measurement such as in loss of earnings and medical expense, and where the amount of the verdict may he based on comparative negligence. Sterns M. Law Jr. v. Scottie Collins et ux, 242 Ark. 83, 411 S. W. 2d 877.\nThis court has h^ld that a verdict for one dollar amounts to a denial of damages in an action for damages to the person where the proven pecuniary damage amounted to much more than that, and that such verdict should he set aside and a new trial granted. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951 ; see Carroll v. Texarkana Gas & Electric Co., 102 Ark. 137 (where, however, property as well as personal injury was involved).\nWe have consistently held that it is not error to grant a new trial on the motion of a plaintiff who has been awarded damages for injury to the person where other reversible error appears in the record.\nIn the recent case of Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S. W. 2d. 411, Billy Linx-wiler received a gunshot wound through the negligent act of the defendant\u2019s employee. The appellant, Billy\u2019s father, sued to recover for the medical and hospital expenses incurred as a result of .the wound and 'also for the injuries sustained by his son. There was a jury verdict for Billy\u2019s personal injuries in the amount of $1,-400.00, but no award was given the father in his own right. Both parties, appealed.\nThe trial court had erred in its instruction pertaining to the duty by the owner of the premises to one who goes on the premises as a volunteer, and in that case this court said:\n\u201cUpon the direct appeal Linxwiler, both in his own right and as his son\u2019s next friend, relies for reversal upon the rule that a plaintiff may complain of an inadequate judgment if the record discloses other error of a substantial and prejudicial nature. Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d. 411. This verdict must fairly be regarded as inadequate. Young Linxwiler suffered much pain, underwent an operation, and spent two weeks in a hospital. The injury has resulted in a slight but per manent malfunctioning of his right eye. It is shown without-dispute that the medical and hospital expenses were more than $875. In view of the inadequacy of. the verdict the appellant is entitled to assert other errors.\u201d\nIn the case of Smith v. Arkansas Power & Light Company, 191 Ark. 389, 86 S. W. 2d. 28, the appellant\u2019s automobile and appellee\u2019s street car collided causing injury to plaintiff\u2019s person. The jury returned a verdict for $5,000.00. The plaintiff appealed on-the ground that error in the trial court resulted in' damages grossly inadequate to compensate for his injuries. The trial court had committed error in failing to give a proper instruction, and this court in that case said:\n\u201cWhen the undisputed evidence shows that plaintiff is entitled to recover substantial damages., a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. When substantial damages are awarded,' a judgment will not bo reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case. This is on the theory, as was said in the Kimbrough case, supra, that but for such error damages might have been properly assessed.\u201d\nLater in the same case this court stated:\n\u201cYet notwithstanding these facts, we would not, under the authority of the cases above cited, reyerse the judgment for its inadequacy of compensation if the record contained no prejudicial error except that of assessing the damages, inasmuch as substantial damages were awarded. But, if there was other error of a material and prejudicial nature, the judgment must be reversed, notwithstanding the award of substantial, and not nominal, damages.\u201d\nSee also McAdams v. Stevens, 240 Ark. 258.\nSo, in the case at bar, we conclude that under the evidence in this case, the injury to appellee\u2019s ulna nerve was not an \u201cintervening cause\u201d as contemplated in A. M.I. instruction No. 503, and as given by the trial court as appellant\u2019s instruction No. 4. (See 65 C.J.S. 111-113 and the numerous cas\u00e9s there cited).\nIn the case of Reggs v. Akers Motor Lines, 63 S.E. 2d. 197, the North Carolina Court said:\n\u201cA superseding intervening cause is one which operated in succession to a prior wrong, as the proximate cause on an injury. 38 A.J. 772. The test of the sufficiency of an intervening cause to defeat recovery for negligence is not to be found in the mere fact of its existence, but rather in its nature and the manner in which it affects the continuity of operation of the primary cause, or the connection between it and the injury.\u201d\nIn the California case of Gibson v. Garcia, 216 Pac. 2d. 119, the court said:\n\u201cIt is well settled, that proximate causation is not always arrested by the intervention of an independent force. If the original negligence continues to the time of injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which liability may be imposed.\u201d\nIn the Wisconsin case of Mertino v. Mutual Service Casualty, Ins. Co., 127 N.W. 2d. 741, we find this statement:\n\u201cEssentially in order for the intervening Act of negligence to constitute a superceding cause it must he such that the conscience of the court would he shocked if the first actor were not relieved from liability.\u201d\nIn the case of Butler v. Arkansas Power & Light Company, 186 Ark. 611, the plaintiff received injuries while alighting from appellee\u2019s street car. The complaint alleged that the street car started up prematurely, and negligence by the motorman for raising the car\u2019s step tripping her. This court speaking in regard to intervening cause, said:\n\u201cThere was testimony tending to show that the passenger\u2019s condition had been made worse by her conduct and confinement since her fall. Such testimony might have some relevancy on the question of the measure of damages, but it could not affect the question of the negligence of the carrier. The negligence of the carrier either caused the passenger to fall, or it did not cause her to fall, and the question of its. negligence in this respect cannot he determined by a consideration of the subsequent conduct of the injured party.\u201d\nAs stated by the Supreme Court of Oklahoma in the case of Kansas City, M. & O. Ry. Co., et al v. Allums, 271 Pac. 949:\n\u201c. . . the showing for a reversal should he much stronger where the error assigned is the granting of a new trial than where it is a refusal.\u201d\nSo, we conclude as in the Butler case, supra, that appellee\u2019s hiatal hernia either was or was not caused or aggravated to the point of hospitalization and surgery by appellant\u2019s negligence, and that the question of negligence in this respect cannot he determined hy a consideration of the subsequent conduct of appellee in scooting around on her elbow or lying still in bed, or by having her arm extended for intravenous feeding while undergoing or recovering from surgery for repair of the hernia.\nWe are of the opinion that A.M.I. instruction 501 on \u201cproximate cause\u201d given by the trial court as ap-pellee\u2019s instruction No. 9, thoroughly covered appellee\u2019s ulna nerve injury under the evidence in this case.\nFor error in giving appellee\u2019s instruction No. 4, the action of the trial is hereby affirmed.\nAffirmed.", "type": "majority", "author": "J. Fred JoNes, Justice." } ], "attorneys": [ "Smith, Williams, Friday & Bowen by Boyce B. Love, for appellant.", "Patten & Brown by Gerland P. Patton, for appellee." ], "corrections": "", "head_matter": "Worth James Construction Company, a Corporation v. Jean Herring\n5-4135\n412 S. W. 2d 838\nOpinion delivered March 13, 1967\n[Rehearing denied Aprill.7, 1967.]\nSmith, Williams, Friday & Bowen by Boyce B. Love, for appellant.\nPatten & Brown by Gerland P. Patton, for appellee." }, "file_name": "0156-01", "first_page_order": 178, "last_page_order": 190 }