Plaintiff, Helen Manley, was injured as a result of a collision between her automobile and one being driven by defendant Joan Hirsh at the intersection of Plumer Avenue and Helen Street, in Tucson, Arizona. The vehicle driven by Joan Hirsh was owned by her father, defendant David Hirsh. From a judgment in favor of plaintiff and an order denying defendants’ motion for a new trial defendants have appealed.
Considering the evidence below in support of the judgment in its most favorable light it appears that plaintiff was operating her car in an easterly direction on Helen Street while defendant Joan Hirsh was driving south on Plumer Avenue. As the two cars approached the intersection plaintiff was to the right of defendant. The day was fair and sunny. The exhibits and the testimony show that the northwest corner, i. e., the corner between the approaching cars was open and to approaching motorists an unobstructed view was presented. There were no traffic controls at the intersection.
Plaintiff testified that she was traveling at a speed between twenty and twenty-five miles per hour and was approximately seventy-five feet from the corner when she first saw the car of defendant; the Hirsh girl was driving about thirty-five miles per hour in plaintiff’s opinion, and was about one hundred and ten feet from the intersection; plaintiff kept watching the other car and could see that Joan Hirsh and her companion were laughing and talking; plaintiff, realizing that Joan Hirsh had not yet seen her, “slammed on” her brakes. Testimony of a police officer who arrived at the scene of the accident after it had occurred estimated that plaintiff’s car had skidded thirty-nine feet after the brakes were applied, ending up six feet past the western boundary of Plumer Avenue. An expert witness in connection with speeds as determined from skid marks stated that under the circumstances of this case a car such as plaintiff’s would have skidded between thirty and forty feet at a speed of twenty-five miles per hour. This evidence was based on the premise that plaintiff’s car had stopped prior to the collision. The police officers could not testify one way or the other as to that fact, but Mrs. Manley stated that she had brought her car to a complete stop just before Joan Hirsh ran into her. The aforementioned police officer testified that no skid marks were laid down by defendant’s car.
Plaintiff, a fifty-two year old woman at the time of the accident, received bruises, abrasions and contusions requiring medical attention. For the greater part of the twenty-two months between the collision and the trial plaintiff was forced to sleep on a board and wear a surgical brace. She walked with a limp at the time of the trial. Plaintiff’s testimony as to her *98 good physical condition and active life before the accident and the change for the worse thereafter was corroborated by several witnesses. At the trial plaintiff complained of pain in her left side, stating that she no longer could lift children and that as a result her “baby-sitting” jobs had been severely restricted. Plaintiff’s doctor testified that in the first examination after the accident he found a large black and blue area over her left buttock, extending up the left side to the chest and left side of breast. Plaintiff complained of pain in her left shoulder, back and cervical spine. There were no broken bones. The doctor stated that it was possible that the pain might end within a year or last for the rest of her life. He said he thought any decrease in pain would be gradual in view of her prior condition of arthritis or neuritis.
The trial court submitted the issues of negligence, contributory negligence, and last clear chance to a jury, which found in favor of plaintiff and awarded damages in the sum of $11,250.
Defendants moved for a new trial on the grounds of excessive damages, that the verdict and judgment were not justified by the evidence and were contrary to law, and that the trial court had erred in giving certain instructions and refusing others. This motion was denied. The appeal before this . court contains essentially seven assignments of error which fall into five separate categories.
Taking the question of liability first we are confronted with defendants’ second and third assignments of error dealing with the doctrine of last clear chance as defined by the court. Defendants contend that the doctrine was inapplicable to the facts of the case and that the instruction should not have been given. The argument is also made that the instruction itself misstated the doctrine in failing to advise the jury of the need to find defendant Joan Hirsh guilty of subsequent negligence. Since the jury was presented with two possible situations in which defendants could have been found liable, negligence solely on the part of Joan Hirsh, or negligence on the part of plaintiff, plus subsequent negligence on the part of Joan Hirsh at a point in time when she still had the last clear opportunity to avoid the accident, it becomes necessary to see if the doctrine of last clear chance was applicable, and if so, whether the instruction correctly stated the law. The doctrine of last clear chance as defined in the Restatement, Torts, Section 479, has been quoted with approval by this court on more than one occasion, Casey v. Marshall, 1946,
Defendants argue that the question of Joan Hirsh’s subsequent negligence was not submitted to the jury, but we cannot agree *100 with this contention; Although the instruction covering the last clear chance doctrine was not artfully drawn it fairly states the law and the jury was apprised of the elements necessary to find that Joan Hirsh had had the last clear chance to avoid the accident.
Defendants’ fifth assignment of error refers to the failure of the court to give defendants' Instruction No. 15 which would have advised the jury that it could not award any damages for plaintiff’s preexisting conditions of “obesity, menopause and/or poor posture”. The trial judge refused this instruction on the ground that there was no evidence of any trouble from such conditions prior to the injuries. They were mentioned by plaintiff’s doctor only insofar as they have hampered her recovery from the injuries. These conditions were only important from the standpoint of possible aggravation. The part of the instruction referred to above dealt with something entirely outside the scope of the evidence and the trial court properly refused to so instruct the jury.
In assignment of error No. 6 defendants attack two of the trial judge’s rulings in which he refused to admit certain evidence for impeachment purposes. The proffered evidence consisted of defendants’ Exhibits 1 and 5, for identification, and were, respectively, the notes of the officer who investigated the collision, and the police accident report dated May 1, 1953, which was submitted by said officer to the Arizona Highway Department. Both exhibits were offered by defendants for only one purpose, namely, to impeach the testimony of officer Altenberger to the effect that he did not know whether Mrs. Manley’s car had stopped at the moment of the collision. The proffered exhibits both state categorically that plaintiff’s car struck defendant Joan Hirsh’s car, but this was merely a conclusion of officer Altenberger, since he was not an eyewitness to the accident. No evidence was offered by either side in an attempt to qualify officer Altenberger as an expert, with the result that he was not competent to testify as to such matters. It follows that if said officer was not competent to testify as to matters requiring an expert’s knowledge at the time of the trial his conclusions as to the very same matters were not competent when originally made. Consequently, such original statements could not be used to impeach his testimony at the trial when he stated he did not know whether the plaintiff’s car had stopped before the collision.
In assignment of error No. 7, defendants argue that the trial court erred in permitting plaintiff’s part time employer to testify as to the earning capacity of “baby-sitters” employed by her, on the grounds that such evidence was immaterial. It is defendants’ contention that employment in the baby-sitting business is sub
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ject to so many variables, such as age of sitter, availability as to time (day, evening or overnight), as well as distance, etc., that it is impossible to generalize as to average earnings or earning capacity. Mrs. Manley did not testify that she had ever been available for full time employment as a sitter prior to the accident, nor did she so testify as to the future. Consequently, it is clear that the testimony of her employer as to the potential earning capacity of baby sitters in general was in no way relevant to plaintiff’s particular situation. Therefore, although it was admissible when the employer testified, it should have been made subject to connection with relevant testimony by plaintiff, and in the absence of such testimony by plaintiff it should have been stricken. This error was prejudicial and due to the fact that there is no way for this court to determine to what extent the jury was influenced by such evidence, and since we cannot segregate the excess damages awarded to plaintiff, the remedy of remittitur is not available. Silver King of Arizona Mining Co. v. Kendall, 1921,
Defendants argue in Assignments of Error 1 and 4 that the court erred in giving and refusing certain instructions concerning the measure of damages. The trial judge granted a modified version of plaintiff’s Instruction No. 14, while refusing defendants’ Instruction Nos. 10 and 13. Instruction No. 14 permitted the jury to award damages to Mrs. Manley for medical care, loss of earnings, permanency of injuries, and pain and suffering “reasonably certain” to occur in the future. Instruction No. 10 was the standard type of instruction covering damages and was aptly covered by plaintiff’s Instruction No. 14. Instruction No. 13 was cautionary and merely attempted to instruct the jury not to award damages on the basis of mere possibility or probability. In view of plaintiff’s Instruction No. 14 which used the words “reasonably certain” we do not find any error in refusing this instruction.
Defendants’ primary contention here is not that plaintiff’s Instruction No. 14 is bad in and of itself, but rather that it is not supported by the evidence. It is argued that where plaintiff allegedly suffers from an injury subjective in character, i. e., which cannot be corroborated by medical testimony, no damages can be awarded for future effects of the injury, such as medical care, loss of earnings, permanency of injury, and pain and suffering, since such damages would be too speculative. Defendants point out that this is well-settled law in the majority of jurisdictions in this country, Pine v. Rogers,
In the very recent case of Henderson v. Breesman, 1954,
At the time of the trial in the' case at bar, some twenty-two months after
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the accident occurred, plaintiff testified she still suffered from backaches and limped, that her physical condition had been good prior to the accident, and that her livelihood as a baby-sitter had been adversely affected due to her inability to lift children or to accept overnight work. Her doctor said her pain might last for the rest of her life or end in a year, but pointed out that any decrease in pain would be gradual due to previous ailments. Friends and associates confirmed plaintiff’s testimony as to the marked change in physical condition they had observed since the injuries were inflicted. In addition, the uncontroverted evidence shows that plaintiff had been for about a year and was still at the time of the trial wearing a surgical brace, sleeping on a board and suffering pain and physical discomfort. From this testimony, it is obvious that future pain and suffering as well could be inferred by the jury. We believe that as far as permanency of injuries and future pain and suffering are concerned this case is controlled by the Mullen case, supra, and therefore, that limited to these two items the instruction in question was proper. See, also, Alamo v. Del Rosario, 1938,
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As mentioned above, no remittitur is possible in this situation so a new trial must be granted. However, since the questions of liability and damages are clearly separable issues we remand this cause to’ the trial court for a new trial limited to the question of damages only. Rule 59(h), Rules of Civil Procedure; Palmer v. Kelly, 1938,