Knotts v. Valocchi , 2 Ohio App. 2d 188 ( 1963 )

France, J.

This appeal is from a judgment in favor of the plaintiff, appellee herein, rendered on the verdict of a jury in the amount of $42,000 for personal injuries resulting from an automobile collision at an intersection controlled by a traffic signal light. Each party claimed, in pleadings and evidence, the existence of a green traffic signal in his or her favor and each denied any knowledge of the approach of the other.

Six assignments of error are presented, three of them relating to the trial court’s charges to the jury. These three, Nos. 1, 3 and 6, will be first considered.

The first relates to special instruction No. 2, delivered before argument, as follows:

‘ ‘ The court instructs you that one operating a motor vehicle on the public street or highway has the right to assume that another likewise engaged in the operation of a motor vehicle, will obey the law. If you find that the plaintiff, Isabella Knotts, entered the intersection on the ‘green’ or ‘go’ signal, then she had the right to assume that the defendant Yitale Yalocchi would obey the ‘red’ or ‘stop’ signal and that he would not enter the intersection so long as the signal remained ‘red’ or ‘stop’ against him.”

Complaint is made that the charge, as given, is incomplete in that it did not contain the words “in the absence of notice or knowledge to the contrary, ’ ’ or similar language, and that under the rule set forth in Blackford v. Kaplan, 135 Ohio St. 268, it is therefore prejudicial error.

Whether or not it was complete in this respect depends on whether, in the case as presented, there was evidence of any such knowledge or notice, or of anything from which such knowledge or notice could be inferred. There was at least some evidence in Blackford v. Kaplan, and in Swoboda v. Brown, 129 Ohio St. 512 (which its opinion Per Curiam cited), of knowledge of the presence of the other vehicle approaching the intersection. In this case, the testimony of both plaintiff and defendant is emphatic that neither was aware of the other’s presence until an instant before the collision, and the testimony of other witnesses who saw them both can scarcely be relied upon to establish that they saw each other. In this posture of the evidence, intrusion of the question of knowledge or notice, however good as an abstract statement of law, would have failed to conform to the evidence, and would, at best, have been confusing to the jury, and, at worst, have permitted it to speculate as to a knowledge which, under the evidence, was nonexistent. The specific reference to defendant by name rather than the more proper and generalized “every other person,” in the special instruction, came close to a judicial declaration of notice but did not quite achieve it.

Even if, however, the failure to use the qualifying words was error, it was one of omission. No objection was made of it in the record until more than two months later in briefs filed in support of motion for new trial. Where a statement of law in a charge is incomplete, but correct as far as it goes, counsel has an obligation to point out its incompleteness and to suggest further instruction; otherwise, the error does not justify reversal. Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St. 140; Rhoades v. City of Cleveland, 157 Ohio St. 107. See State v. Tudor, 154 Ohio St. 249, 258.

The first assignment of error, and the third, which complains of virtually identical omission in the general charge, are overruled.

The sixth assignment of error is directed to the trial court’s special instruction No. 1 on damages. In the course of defining permanent injuries the court stated:

< í * * * And you have a right to consider not only what the loss has been in these respects in the past, but that which may reasonably be expected to follow in the future.” (Emphasis supplied.)

Appellant complains that the proper statement, in place of the underscored words should be, “are reasonably certain to follow.” We agree that the latter is a preferable statement, but in the particular case it appears to be a distinction without a difference. The undisputed and unrebutted testimony of Dr. Mc-Burney, the sole medical witness in chief, was unequivocal, not only as to those damage items which were permanent but as to those which were in his opinion unlikely and conjectural. Where, as frequently happens, the testimony of two or more medical men varies as to reasonable probabilities of continuance or recurrence of symptoms and effects, there could easily be improper speculation by a jury with such words used. In the light of the testimony in this case, we think there is no reasonable possibility of such speculation. The sixth assignment of error is not well taken.

The second assignment charges error in admission, over objection, of inflamatory testimony. It appears that, prior to trial, defendant had secured a medical examination of the plaintiff by one Dr. Downing. At trial, defendant did not call Dr. Downing as a witness, nor did he offer any medical evidence as to plaintiff’s injuries. Thereupon, after defendant rested, plaintiff recalled one of its witnesses for the sole purpose of showing that Dr. Downing had made the examination “at the request of the defense” and “for the purpose of this trial.”

In our opinion, this was unquestionably error. Defendant was free to accept or dispute plaintiff’s medical evidence. He had no obligation to produce a doctor at trial, nor did the fact that he exercised his right of medical examination before trial fasten such obligation upon him. Therefore, he could not be called upon to answer for the absence of such a witness or his failure to call him. The testimony regarding such absence was incompetent; it had no probative value. It was not proper rebuttal testimony, for on this point there was nothing to rebut. As to plaintiff’s argument that it constituted a permissible re-opening of his case, it is sufficient to point out that it had no probative value with respect to either liability or damages. It was obviously done for the sole purpose of enabling plaintiff’s counsel to comment in argument on Dr. Downing’s absence from the trial. This was done; counsel even argued to the jury that Dr. Downing “would tell you the same thing that Dr. Mc-Burney told you — that this woman was seriously and permanently injured.” Obviously this was grossly improper argument. But defendant made no objection to it whatsoever; his counsel even agreed that “we do not have any great quarrel as to the degree and extent of her injuries * * * these horrible injuries she has suffered.” Under these circumstances, we do not feel that the error of admitting the testimony was, in any respect, prejudicial to defendant.

It may be argued that the incident tended to arouse passion in the jury against defendant. Perhaps it may have. So in all probability did grossly improper testimony and argument that defendant had not sought plaintiff out to express his sorrow over the accident. Defendant at no point registered objection to it.

We find the second assignment of error not well made.

Assignments of error four and five relate to excessive verdict and failure to grant a new trial. They have been briefed and argued together and will be similarly considered.

Both appellant and appellee have given much time to comparing the verdict in question with verdicts claimed to be rendered for similar or comparable injuries in Lake County and elsewhere. In this statistical analysis, NACA Law Journal is cited, and Statewide Jury Verdicts undoubtedly furnished source material. We are impressed with the diligence of counsel in this regard but think that their energies might have been better expended than on this sort of statistical approach. Facial scars to a teenage boy and to a mature woman may logically call for different considerations by a jury. Differences in mode of living, or of employment possibilities, or of social acceptance, among other things, may legitimately cause a jury to vary the amounts awarded. Intensity and duration of pain naturally will vary from case to case and are scarcely susceptible of charting for the jury’s consideration. Defendant’s counsel described the injuries to the jury as “horrible.” We are scarcely prepared to say, in the face of this and of 27 days of hospitalization, that the verdict would not be a substantial one. Defendant complains that the $42,000 awarded is the highest in Lake County’s history. Perhaps so, but with present trends it is unlikely that this record will long stand.

(Decided March 20, 1963.)

Defendant denounces the “penny a minute” for pain argument used by plaintiff in his closing argument, but significantly he made no objection to it at the time it was delivered. Perhaps he felt, as does the writer, that this sort of argument is so “corny” and theatrical as to insult the intelligence of the jury and so be self-defeating. In any event, he remained silent while the argument was delivered and cannot now complain.

The amount of the verdict, considering the injuries involved, does not shock the conscience of the court. After all the verbiage in appellate opinions, this remains the only safe test of excessive verdicts. The fourth and fifth assignments of error are overruled.

We find no error in the record prejudicial to appellant, and find that substantial justice has been done between the parties. The judgment of the Common Pleas Court, Lake County, is, therefore, affirmed.

Judgment affirmed.

Brown, P. J., and Donahue, J., concur.