Coccora v. Vicksburg Light & Traction Co. , 126 Miss. 713 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

This suit was instituted by appellant, Rosario1 Coccora, against the appellee, Vicksburg Light & Traction Company, to recover damages for personal injuries alleged to have been sustained by appellant as a result of a collision between an automobile in which he was riding and a street car operated by appellee, and from a judgment for appellant for the sum of one hundred and’seventy-five dollars this- appeal was prosecuted.

It appears from the testimony that at the time of the accident appellant was riding as a guest in an automobile driven by his niece, Mrs. Bucci; that it was or had been raining and the curtains of the automobile were up; that the driver of the automobile was alone on the front seat, while appellant and a child were on the rear seat; that the automobile was preceeding south on First North street, which runs north and south and intersects Olay street, which runs east and west, and that the driver intended to turn into Clay street; that the street car was proceeding west on Clay street and collided with the automobile as it turned east into Clay street. There was much testimony as to the acts and negligence of the driver of the automobile, as well as the motorman of the street car, but, since the jury resolved the question of negligence against appellee, from which there is no appeal, we do not deem it necessary to further detail the facts and circumstances surrounding the collision.

As to the nature and extent of the injury suffered by appellant, there is testimony to the effect that when he was taken from the wrecked car he was unconscious and did not regain consciousness until the next morning; that he was confined to the hospital for two weeks; that it was necessary to have his wounds dressed for some time after he was discharged from the hospital; that his hearing was impaired from the blow on the head; that he suffered severe pains, and paid out the sum of one hundred thirty-five, dollars and twenty-five cents for medical and hospital bills. Dr. George Street, physician in charge of the sanatorium to which appellant was carried after his injury, testified in part as follows:

“Q. Will you please describe to the jury there his condition when he was brought to the sanitarium, if you know? A. The afternoon he was brought in, he was in a semiconscious condition ;_he didn’t know where he was until the next morning; he was suffering from a concussion; he had a lick on the head; there was a wound in the scalp, on the top of the head, a cut several inches long, and the scalp had been terribly torn from the top of his head, and then he had another wound in the face; the bones on the right side of his face had been terribly crushed in.

“Q. The left side you mean? A. Yes; the bridge of his nose, the bones were broken, and under hig left eye the bones were broken, and, of course, the tissues were torn.

“Q. What was the condition, if you recall, of his hands? A. Well, he had.quite an extensive laceration on one of his hands, cuts in the palm of his hand, and a long cut on the back of his hands.

“Q. After treating and dressing those wounds, how long was he compelled to remain by reason of those wounds in your sanitarium under your treatment, Doctor? A. If I recall properly, he was in the sanitarium about two weeks, and then he had to go to the office for dressings for two or three weeks longer.

,“Q. After he went home? A. After he left the hospital.

“Q. During that time, Doctor, please tell the jury whether Mr. Coccora suffered any physical pain or not, from those injuries. A. Naturally, those were painful injuries; for the first two or three weeks he suffered quite a lot; he had a severe headache; suffered a good deal following the lick on the head.

“Q. What scars, if any, were there on his face? A. There was a scar leading from the bridge of his nose down the side of his face, under his eye.

“Q. The effect of this wounded hand, I want to ask you as to that, what effect, if any, did these wounds on the palm of the hand and back of the hand have on Mr. Coccora’s use of that hand? A. Couldn’t use it for several months, and it is not entirely well yet.

“Q. Would you undertake to say whether or not that stiffness in the left hand will remain or will it come out entirely? A. I think it wall eventually disappear.” • Appellant seeks a reversal of this cause solely on the ground that the amount of damages awarded is grossly inadequate; and in support of this ground of complaint assigns as error certain instructions granted appellee, and especially instruction No. 8, which is as follows:

“The court instructs the jury for the defendant that the defendant street car company is not liable for the slightest injury or damage, if any, which the .plaintiff may have received at the hands of the driver of said automobile by her negligently driving the same, if they believe from the evidence such were the facts.”

There was no motion for a new trial in the court below, and 'appellee contends that, since no objection was there made to the verdict or judgment on the ground that the amount thereby allowed was inadequate, the objection cannot be urged for the first time on appeal.

Appellant contends that under rule 6 of' the Revised Rules of this court (72 So. vii) it' is unnecessary to make a motion for a new trial in any case in order to obtain a review in this court of any ruling made in the trial court, and that the verdict of the jury awarding damages and the entry of the judgment thereon is in effect a ruling made in the trial court. This contention is not maintainable.

Section 3, rule 6, of the Revised Rules of this court is as follows:

“The right of an appellant to obtain a review in this court of any ruling made in the trial court shall not depend in any wise upon his having filed in such court a motion for a new trial, or if such motion has been filed upon the grounds thereof being distinctly specified.”

The purpose of this rule is to dispense with the necessity for a motion for a new trial Avhen the error assigned is based upon any ruling made in the trial court, but the verdict of the jury and judgment entered thereon is in no sense a ruling of the trial court, and, in the absence of error in any of the rulings of the trial court, the rule in question does not dispense with the necessity for a motion for a new trial when the assignment or error is based solely upon objection to the amount of the verdict. If the trial judge has committed no error in the trial, and a party is dissatisfied merely with the amount of the verdict returned by the jury, he must make Ms complaint the basis of a motion for a new trial and give the trial court an opportunity to correct the error, and, if he fail to do so, the objection will not be available on appeal.

However, if there are errors in the instructions, or other rulings of the trial court, which may have misled the jury as to the proper elements or measure of damages, and which may have reasonably resulted in an award of improper damages, such erroneous rulings and the improper award of damages resulting therefrom may, on appeal, be assigned as error without making a motion for a new trial in the trial court.

As compensation for the injuries suffered by appellant, we think a verdict of one hundred and seventy-five dollars only a few dollars more than his medical bills and hospitál fees, was grossly inadequate, and that this verdict should not be permitted to stand if the errors complained of in the rulings of the trial court may have reasonably resulted' in reducing the amount of the recovery.

It is not contended here, and we do not understand that it was contended in the court below, that appellant was guilty of any negligence in riding as a guest in the automobile driven by his niece, and, under the facts in this case, any negligence of the driver was not imputable to appellant. It is contended, however, that the driver of the automobile was guilty of negligence, and that her negligence was the sole cause of the injury, but the jury, by its verdict, has resolved that question against appellee, and has found that appellee was guilty of negligence prosimately contributing to the appellent’s injury. The conclusion that both the driver of the automobile and fhe motorman of the street car were guilty of negligence, and that appellant’s injury was the result of tbe concurring negligence of tbe driver of tbe automobile, and tbe motorman is amply supported by tbe evidence, and, under tbe facts in this case, appellant was entitled to recover full compensation for tbe injuries resulting from tbe concurring negligence of tbe driver and motorman.

In this state of tbe record, tbe court granted appellee instruction No. 8, herein set out in full, wbicb eliminated and excluded from tbe consideration of tbe jury all damages wbicb resulted from tbe negligence of tbe driver of tbe automobile, and limited tbe recovery to only sucb damages as were occasioned by tbe negligence of appellee. This instruction, wbicb peremptorily charged tbe jury to eliminate as an element of damage sucb injury as bad been received by appellant by reason of tbe negligence of tbe driver of tbe automobile in which be was riding, was erroneous, and we cannot say that tbe inadequacy of tbe recovery was not tbe result of this erroneous instruction upon tbe elements of "damage recoverable.

For the error in granting instruction No. 8, the judgment of the lower court is therefore reversed in so far as it adjudges tbe amount of damages to be recovered, but in all other respects will remain in full force and effect, and tbe cause is remanded for tbe purpose only of adjudging tbe amount of damages to be recovered by appellant.

Affirmed in part, and reversed in part.