Plaintiff, a passenger in an automobile driven by her husband, brought this action against W. Hodgman & Sons, a corporation, to recover for personal injuries resulting from an accident alleged to have been caused by the negligence of the defendant. Before answering, defendant moved for leave as a third-party plaintiff to serve summons and complaint on the husband, Edwin D. Klein. Motion was granted and service was made on the husband designated in the action as third-party defendant. At the conclusion of plaintiff's evidence, motion was made for directed verdict and again at the conclusion of all the evidence. The motions were denied and the case was submitted to the jury that found the issues in favor of the plaintiff and assessed the damages at $20,000 for which judgment was rendered. Motion for new trial was denied and defendant appealed.
The accident out of which this action arose occurred about 11 o'clock p. m. on October 30, 1954, on U. S. Highway No. 18 about five miles west of Winner, South
Defendant advances the following grounds for reversal: First, insufficiency of the evidence to sustain the verdict; second, errors in giving and refusal of instructions; third, errors in the admission and exclusion of evidence; fourth, error in denying motion for mistrial because of irregularity in the selection of the jury; and fifth, excessiveness of the verdict.
Defendant contends that there is no evidence that the alleged negligence on the part of the defendant was the proximate cause of the accident; that if it be claimed that the proximate cause was established by circumstantial evidence the circumstances shown were not of sufficient probative force to justify submission to the jury.
In determining whether the trial court erred in not granting defendant's motion for directed verdict, the evidence and all legitimate inferences must be viewed in the light most favorable to the plaintiff. Flanagan v. Slattery, 74 S.D. 92, 49 N.W.2d 27; Kleinhesselink v. Porterfield, S.D., 83 N.W.2d 191. Plaintiff testified in substance that her husband was driving on the righthand side of the highway at a speed of 45 to 50 miles per hour; that she had been observing the highway ahead when the car hit a bump; and that she did not see anything on the highway which led her to believe that there was a bump or a newly laid bituminous mat in their lane of travel. The following excerpt is from her testimony on cross-examination:
The husband's account of the accident is as follows:
On cross-examination, Mr. Klein testified:
The bituminous mat extended a distance of 571 feet westerly beyond the bridge with which the Klein car collided. An engineer employed by the State Highway Commission testified that the thickness of the mat was a minimum of one and one-half to a maximum of two inches. There was a beveled surface at the end of the mat between the new and old roadbeds. The thickness of the mat and the width of the bevel were much in dispute. An unlighted flare was found on the south side of the highway and to the west of the end of the mat.
Plaintiff had the burden, not only of proving that defendant was responsible for some negligent act, but that such act was the proximate cause of her injury and damage. Anderson v. Chicago & N. W. Ry.
The court instructed the jury in effect that in determining the amount of damages to which plaintiff was entitled they could consider "past and future suffering, if any." The jury was further instructed that in determining the amount of damages for permanent injuries, if any, they were "limited to that evidence concerning the scar upon plaintiff's nose." Defendant contends that since the evidence did not show with reasonable certainty that there will be future effects from the injuries or that permanent injury has been sustained it was error to give an instruction which included these elements as the basis for an award of damages.
Damages for future pain and suffering or permanent injury cannot be arrived at by conjecture or speculation. The future consequences of an injury must be shown with reasonable certainty. Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410. To the same effect is McGovern v. Murray Taxi Co., 75 S.D. 151, 60 N.W.2d 211, wherein it was held that the court should not give an instruction permitting a jury to assess damages for permanent injuries unless there is evidence showing with reasonable certainty that such injuries have been in fact sustained by the plaintiff.
Plaintiff was in the hospital from October 31, 1954, to December 24, 1954, and was confined to bed until the last few days therein when she was about on crutches. She described her injuries and their disabling nature as follows:
The medical testimony was that plaintiff's fractures at the time of trial had entirely healed and that there probably was no permanent disability. Her attending physician gave testimony to the effect that she still had "a persistent tender and swollen area over the lower and outer left thigh", but did not know whether or not this condition was caused by the accident.
We had the question of the necessity of expert evidence to warrant submission of the issue of the future effect of an injury submitted to us in the recent case of McGovern v. Murray Taxi Co., supra. In that case we quoted with approval from the case of Horowitz v. Hamburg-American Packet Co., 18 Misc. 24, 41 N.Y.S. 54, 60:
And in Shawnee-Tecumseh Traction Co. v. Griggs, 50 Okl. 566, 151 P. 230, 231, wherein it was held that application of the rule depends upon the nature of the injury, the court said:
Respondent urges that as to the scar the jury from the very nature of the injury could determine its permanency and that there was no necessity of medical evidence to aid the jury in determining the amount of damages for such injury. But there is no claim of future physical suffering because of the scar. Plaintiff testified that she still suffered pain. There is no testimony that would aid the jury in determining with reasonable certainty the duration and
There are other questions presented, but we need not consider them since they likely will not arise on another trial.
The judgment appealed from is reversed.
SMITH, P. J., and RENTTO and HANSON, JJ., concur.
BOGUE, J., not sitting.