The opinion of the court was delivered by: MARSH
After a jury verdict in favor of plaintiff, Frances M. Rowe, in the sum of $ 5,000 and in favor of plaintiff, Purnell M. Rowe, her husband, in the sum of $ 6,000,
and against the defendant, Joseph G. Wirtz, the latter moved the court for a new trial and to open the judgment in favor of the plaintiffs and enter judgment for the defendant in accordance with his motion for directed verdict.
The motion to enter judgment for the defendant will be denied because the jury could have found facts from the evidence from which it could have concluded that the defendant Wirtz was guilty of negligence which was the proximate cause of plaintiffs' injuries and property damage. Briefly, these facts are as follows: On January 29, 1951, at about 2:45 o'clock P.M., Purnell M. Rowe, the plaintiff, was operating his Oldsmobile sedan in an easterly direction upgrade upon United States Route 30, about one mile west of Irwin. The wife plaintiff was seated in the front seat beside him. The defendant, Wirtz, was traveling in a westerly direction downgrade. At this point Route 30 is a 4-lane highway with a white line dividing the two easterly lanes from the two westerly lanes. Preceding Wirtz was a Plymouth sedan operated in a westerly direction by the defendant, Emmo O. Leonhard. Following the plaintiffs' car, going east, was a Buick sedan operated by the defendant, Frederick R. Axelson. Portions of the highway in the vicinity of the accident were slippery from ice.
Wirtz collided with the left rear part of the Leonhard car, and it could have been found that this collision was attributable to his lack of control, excessive speed in the circumstances, careless driving, or failure to stop within the assured clear distance ahead. As a result of that collision, the Wirtz car 'ricochetted' across the white center line, across the two east-bound lanes and collided with the Rowe car which at that instant was moving east about ten miles per hour with its two right-hand wheels on the berm of the road. A moment later, the Axelson car collided with the rear end of the Rowe car. The evidence relied on by Wirtz to exculpate him was not accepted by the jury.
The jury found verdicts in favor of defendants, Emmo O. Leonhard and Frederick R. Axelson; the court directed a verdict in favor of defendant, A. F. Leonhard.
Defendant presents five reasons in his motion for a new trial:
1. The verdict in favor of Purnell M. Rowe is excessive.
2. The verdict in favor of Frances M. Rowe is excessive.
3. The court erred in submitting the question of the hernia causation to the jury and in permitting the jury to assess damages for the hernia condition.
5. The court erred in refusing defendant's motion to withdraw a juror who had been observed conversing with the plaintiff during the course of the trial.
We take up these reasons seriatim.
The court agrees that the verdict in favor of Purnell M. Rowe is excessive. The damage to his car was $ 1,096.37. The jury could have found that his other expenses, including his wife's medical expenses, amounted to around $ 950, making his total special damages about $ 2,050.
Mr. Rowe claimed to have received and injury to his wrist which caused him some pain. This injury was very minor; there were no cuts or broken bones; there were no lost wages or diminution of earning capacity. He did not seek medical attention.
Mr. Rowe was deprived of his wife's services for a period of less than four months. Mrs. Rowe was 48 years of age. The couple lived in an apartment; there were no children; no outside help was engaged to take care of the apartment; his shirts were customarily sent to the laundry and the apartment chores according to Mrs. Rowe were not heavy. The size of the apartment and details of the household duties he performed during the four-month period were not given. According to their doctor, Mr. Rowe was 'out of town for great periods of time', which was one of the reasons he ...