Thеse are appeals from an order denying the defendants’ motions for new trials in two actions which were tried together below and on appeal were consolidated for disposition. The question of liability is not disputed. The relief sought is a new trial on the issue of damages only in each case.
The questions to be determined in each case in order to reach a decision are: (1) Did the court err in submitting the issue of permanent injuries to the jury? (2) If the issue of permanent injuries was for the jury, did the court err in the method and manner in which the issue was submitted? (3) Are the damages excessive?
In determining whether the evidence was sufficient to submit the issue of permanent injuries to the jury we consider and state it in the light most favorable to the plaintiffs. On December 16, 1950, plaintiff Mary Y. Cameron, wife of plaintiff Darrell P. Cameron, while riding as a passenger in a taxicab in Little Falls, was thrown from it in an accident and dragged for a distance.. She was unconscious for a short time. She received injuries principally to her head, back, hip, and left leg. Her most serious injury was a compression fracture of the seventh thoracic vertebra. She was taken to the hospital where she was confined in bed until December 23 at which time a body cast was applied. On December
2i
she was taken to her home where she remained in bed most of the time until Febru
Prior to the accident Mrs. Cameron was in good health, did all of her own housewоrk, was active and athletic, enjoying dancing, skating, and bowling. She had suffered no previous injuries. Since the accident she has had severe headaches, pain in her hip and left leg below the knee, and a great deal of pain in her back. She is required to take drugs for relief. She is unable to perform any of her household duties other than mending and caring, in part, for her bаby. Since the accident the Camerons have employed a maid constantly in their home to do the work formerly done by Mrs. Cameron.
The seventh vertebra was compressed at the outset about 10 percent, the compression being inward and also on the left side. There was a widening and splintering of the bone in that area. The space between the sixth and seventh vertebrae was narrowed, and the disc or cartilage between those two vertebrae was damaged. The compression of the vertebra increased following the accident so that at the time of the trial it was permanently reduced, according to plaintiffs’ medical experts, at least 20 to 30 percent from its normal size; and the intervertebral spаce between the sixth and seventh vertebrae was almost closed because of damage, not only to the bone, but to the cartilage between the vertebrae. Two doctors, who attended Mrs. Cameron, one an orthopedic specialist and the other a general practitioner, were .called as witnesses for the plaintiffs. They testified that she had sustained a 20 percent permanent partial disability of the spine. In the light of this evidence, it would seem that the issue of permanent injuries was for the jury.
However, defendants contend that, notwithstanding the fact that the seventh vertebra will remain permanently compressed to the
This court has frequently stated that before a person may recover for permanent injuries it must appear to a reasonable certainty that there will be permanent injury.
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Large verdicts must be closely scrutinized where the damages are based upon subjective symptoms only.
3
Courts must exercise much circumspection in sustaining large verdicts where there are no objective findings and the only evidence of the extent of the injury is the word of the person injured.
4
Thus, in Lowe v. Armour Packing Co.
supra,
it was held
Defendants, in support of their contention, point to some admissions, contradictions, and inconsistencies drawn from plaintiffs’ medical experts in cross-examination. It is not uncommon for admissions, contradictions, and inconsistencies to appear in the testimony of witnesses during cross-examination even though the witnesses are entirely honest. However, in arriving at the meaning of the testimony of a witness and what it proves, the testimony must be examined and considered as a whole as brought out on both direct and cross-examination. Its meaning must be drawn from the entire testimony of the witness and not from isolated portions of it. This rule apрlies with equal force to the testimony of expert witnesses. It is for the jury, not the court, to determine the weight to be given to the testimony of a witness and to decide what the testimony of the witness proves. 5
While it is true that some of the answers given by plaintiffs’ experts standing alone might indicate that Mrs. Cameron’s complaints of pain were entirely subjective, nevertheless, viewing their testimony as a whole it appears, from the type of fracture which she suffered, the almost complete destruction of the cartilage between the vertebrae, the scoliosis or lateral bending of the spine, the bruising of her head, back, left thigh and leg, the injury to the tendons and soft tissues, the arthritis which developed at the fracture site and its increase at the lower lеvel, and the evidence of pain elicited by the experts upon pressure of the affected parts during their ex
The experts on both sides agreed that there were arthritic changes or “spurs” at the fracture site of the seventh thoracic vertеbra caused by the accident. They also agreed that there were arthritic changes or spurs between the ninth and tenth thoracic vertebrae. The initial X rays taken of Mrs. Cameron’s spine on the day of the accident showed a minimal amount of arthritis between the ninth and tenth thoracic vertebrae. All experts agreed that the
Dr. Hall referred to the arthritic condition between the ninth and tenth vertebrae on one occasion as an
aggravation
and on another as an
increase
in its size. He expressed the opinion that the increase was due to trаuma. In cross-examination he said that trauma might be normal wear and tear. However, he eliminated normal wear and tear as the cause of the increased arthritic condi
Defendants contend that the opinions of plaintiffs’ experts expressing permanent injury were premature since the evidence shows that it is probable that any рain from which Mrs. Cameron was suffering could be relieved either by exercises or by deep X-ray treatments. We think the evidence fairly construed shows that she was unable to discard the brace entirely and continue with the exercises prescribed by her doctors because of the pain which she suffered and that while deep X-ray treatments might relieve some of the pаin there is no assurance that it would relieve all of it.- We think the fair inference to be drawn from the testimony of her experts is that either exercises or deep X-ray treatments, at best, would only relieve part of the pain. The issue of permanent injuries in both cases was properly for the jury.
Defendants’ objection to the manner in which the issue of permanent injuries was submitted to the jury is that the court failed to instruct the jury that there could be no allowance of damages resulting from the pre-existing arthritic condition of Mrs. Cameron principally at the ninth and tenth thoracic vertebrae level. Although a formal request to charge the jury to that effect was not made, the position of the defendants in that respect was timely called tо the attention of the court and sufficiently noted in the record.
This court has often stated that the charge of the trial сourt must be viewed in its entirety
9
and from a practical and commonsense point of view.
10
The trial court is allowed considerable latitude in the language used,
11
and a new trial will not be granted where requested instructions are refused when the general charge fairly and correctly states the applicable law.
12
All that is required
The case of Orth v. Wickman,
While under the circumstаnces here it would perhaps have been better if defendants’ suggestion had been followed in instructing the jury, we are not prepared to say that the failure to do so constituted error in view of the general charge.
Defendants claim that both verdicts are excessive. Whether a verdict should be set aside as excessive rests largely in the discretion of the trial court. It is the duty of the trial court to keep the jury within the bounds of reason and the duty of this court to keep the trial court within the bounds of judicial discretion. The action of the trial court will not be reversed on appeal unless it clearly appears that there was an abuse of discretion.
15
No particular purpose is
Plaintiff Mary Cameron, at the time of the trial, was 26 years of age. Her life expectancy was 42.12 years. The verdict in her case was $21,000. Her husband, Darrell Cameron, was 28 years of age. The verdict in his case was $9,500. He sustained special dаmages due to the injuries which Mrs. Cameron received of approximately $2,000 to $2,500. While the verdicts are liberal and we would have been better satisfied had the trial court reduced them, we cannot say that the failure to do so constituted an abuse of discretion. The trial court should carefully scrutinize large verdicts and exercise caution, reducing them when necеssary, so as to keep the jury within the bounds of reason.
Other alleged errors discussed in appellants’ brief have been carefully considered. Since we have reached the conclusion that they are not of sufficient importance to justify granting a new trial, we purposely refrain from further comment.
Affirmed.
Notes
McBride v. St. Paul City Ry. Co.
Propper v. C. R. I. & P. R. Co.
Haugen v. N. P. Ry. Co.
Kapla v. Lehti,
From the testimony of Dr. Hall:
“A. The findings that are present can easily produce the pain which the patient complains of.”
“The Witness: From my examination and from the X-rays it is my feeling that the patient could have pain from what is found on examination and what is found on the X-rays.”
“Q. Now, Doctor, on this question of disability which you mentioned at 20%, what do you principally determine as the cause оf that disability?
“A. The patient’s complaints, the finding of tenderness, the finding of the X-rays showing very definite compression of the vertebra with the narrowing of the disc space between the 6th and 7th vertebrae, the increase in the changes in the so-called lipping or natural healing process at that level and also at the lower level.”
From the testimony of Dr. Johnson:
“A. Well the pain that she complains of is the result of the fracture. It is the result of the healing process. It is the result of the injury to the tendons and soft tissues around this fracture; and it is also partly the result of this spur formation.”
From the testimony of Dr. Johnson concerning the ninth and tenth thoracic vertebrae:
“Q. You say most of that growth took place between December 16th, 1950, and June 11th, 1951, Doctor?
“A. Yes.
“Q. And in your opinion was that a rapid growth?
“A. Yes, it was during those six months.
“Q. Do you have any opinion as to what caused that growth?
“A. Yes. I think it was caused by trauma to the spine.
“Q. Trauma suffered when?
“A. On December 16th.
“Q. By reason of this injury?
“A. Yes.”
From the testimony of Dr. Hall concerning the ninth and tenth thoracic vertebrae:
“B-25, taken again on 6-11-51, is another front view of the patient in the area here, showing again the compression of the vertebra, and again here the area I showed you below the fracture where the body is attempting to bridge across. There is some new bone again forming in this area, which shows the body again attempting to repair apparently some damage that was also done in that area. There is no fracture here, but apparently there was enough damages that the body attempted to repair in that area also.”
From the testimony of Dr. Hall concerning the ninth and tenth thoracic vertebrae:
“The Witness: It was my opinion that the increase in size in the short period of time that it took place was not a normal wear and tear process, but due to trauma.
sf; s}: * #
“Q. And by trauma you mean a blow of some kind?
“A. Some type of injury to the bone, yes.”
O’Neill v. Mund,
Erickson v. Northern Minnesota Nat. Bank,
Barnes v. Northwest Airlines, Inc.
State v. Becker,
Murray v. Wilson,
Swanson v. LaFontaine,
Merrill v. St. Paul City Ry. Co.
Koenigs v. Thome,