Wells v. Shepard

HART, J., (after stating the facts). It is first insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict. The jury might well have found that the plaintiff himself was not negligent. The evidence shows that he was standing on the west side of the street between a watermelon wagon and the curb looking at the watermelons with the view of purchasing one; that the wagon was about two and a half or three feet from the curb. He was lawfully there, and had no reason to suppose that he would be run down by the negligence of the driver of an automobile running north on the opposite .side of the street. The negligence of the defendant was also a question for the jury. The automobile was going north, and it was the duty of the driver to have kept the automobile to the right of any vehicle he was approaching. It is claimed by the defendant that the chauffeur turned the automobile to the left to avoid striking a horse and buggy which was being driven south on the wrong side of the street and also to avoid striking two persons who were walking across the street. The situation of these persons, it is contended, created .an emergency, and that the chauffeur was not negligent under the circumstances in turning his automobile to the left. According to the testimony of the chauffeur himself, his brakes were not working well. In the first place, the jury might have found that he negligently turned his car too far to the left without checking its speed. The jury, too, might have found that if the chauffeur had had his automobile under perfect control, as he should have had on a public street, such as the one in question here, he might have stopped his vehicle before striking the wagon and have prevented the injury. The testimony for the plaintiff shows that the automobile struck the watermelon wagon with such force as to knock it over against the curb two and a half or three feet away. One can not shield himself behind an emergency created by his own negligence. It is next insisted that the verdict is excessive. The verdict was for $500. Dr Snodgrass testified that he dressed the wounds of the plaintiff, and that his injuries were not permanent; that the plaintiff had a cut over his eye and that his right shoulder was bruised; that both legs were bruised from the knees down and the skin was off all around; that the plaintiff was not seriously hurt, but had a rather painful injury; that he was dirty and muddy from top to bottom; that he was laid up two weeks before he got well. According to the testimony of the plaintiff, .himself, he could not bend his knee for almost three months after the injury and his knee was badly sprained; he had two cuts on his legs and he was cut pretty well all over; he was laid up for eighteen days and then went back to work but had to go home again for about nine days. The accident occurred in August, 1917, and at the date of the trial, November 2, 1917, the plaintiff could not walk fast on account of his injuries. He was making 33 1-2 cents per hour for nine hours per day at the time he was struck. . He suffered severe pain on account of his injuries. The testimony must be considered in the light most favorable to the plaintiff, and, when that is done, it can not be said that the verdict is excessive. The judgment will therefore be affirmed.