Mrs. J. W. Summerville, witness for Mrs. Palmer, testified: "We were descending the mountain near Mountainburg, about one-eighth of a mile north of Mountainburg, on the last curve before we reached the level of the bridge, driving in second gear. About one minute before the accident I glanced at the speedometer and it was 18 miles an hour. I was trying to shift in third when we received the impact. I didn't know what struck us, what took place. I stopped the car shortly, not too quick. As soon as I got stopped with the car I learned the bus had run into the rear of the car in which we were riding." *Page 749
Tim Ackley, bus driver, gave testimony which was not materially contradicted except as to the speed of the car in front of him, as follows: "I was coming down the Mountainburg hill in third gear and near the bottom I went in fourth gear. I saw a car down there and another car down there coming up the hill. The latter was an old touring car with a loose steering gear. The car in front of me was slowing down fast, running twenty or twenty-five miles an hour, and I was running between twenty-five and thirty. I pulled to the left to see if I could go around it, but the other car wouldn't give me room. It was driven by a bunch of boys and was wabbling over the road. The car in front of me was slowing down faster than I could. I pulled back on the right side of the road and was going between three and five miles an hour when I hit the car. When I hit the car it moved it between five and ten feet. When I first saw the situation, when the car in front of me was slowing down and the car coming up on the left, I was going between twenty-five and thirty. I saw the situation and applied the foot brake and the emergency brake. I could have applied no more brake. I was using between 110 and 120 pounds air pressure. I was running in third gear down to the bottom and then in fourth. The car in front gave no sign that it was retarding its speed. Just before I hit it it was going five miles or three to five miles * * *. When I first saw the car coming north it was near a side road on the east side of the road. While I hit the ladies' car this other car was about even with the front end of their car."
I am able to follow plaintiff's pilgrimage from Texas back to a point where the driver, Mrs. Summerville, slowed down on a mountain road while endeavoring to shift into low. Evidence is not lacking that the rear of the car was hit by a bus, and that the impact caused property damage of $1.50 per capita to plaintiff and her friends. Probative value should not be denied Mrs. Palmer's expostulations to the bus driver when she ascertained that a responsible agency was the offending medium, and that first impressions of tire trouble were erroneous. *Page 750
Evidence has been given to show serious and permanent injury, and this is not necessarily destroyed by statements of Mrs. Summerville that a few hours after the accident these ladies were "laughing and cutting up about the incident." Physical impairment does not always sound an immediate alarm, and damage may be obscure.
That Mrs. Palmer came to Little Rock the same afternoon and drove to Waco the following day, is a circumstance not sufficient within itself to impeach the plaintiff's story, for she says that, in Texas, Dr. Bailey was employed. Failure of this physician to attend the trial, and absence of his deposition, are not damnifying to the cause, for many things might account for this obscurity; and Dr. Rose, who did testify, had knowledge from Mrs. Palmer's delineation as to developments between injury and trial.
Before the trip to Fayetteville, Mrs. Palmer had subjected herself to two major operations, but it cannot be argued that these affected her health in competition with the injuries, because in weight alone she had gained ten pounds. Nor is there any suggestion that the jury did not understand the terms when plaintiff's witness said that "exostosis is present on the articular surface of the vertebrae, with calcification, and the anterior-posterior view of the thoracic spine shows a condition that might be cartilage between the vertebrae, but not involving the body itself."
The language is quite simple, and can be understood because "there was no pathology in the lumbar vertebrae." These words were vastly simplified when it was explained by the doctor that he would not classify the patient as having a broken back, or a fracture of the bones; that she should wear a patent brace to keep the joints from moving; that when these had grown together there wouldn't be any pain, and Mrs. Palmer would probably be strong and well as far as that disorder was concerned.
An X-ray picture was taken on the day of the accident, which disclosed that Mrs. Palmer had a beginning of arthritis of the eighth and ninth vertebrae, and this picture, compared with one taken for the plaintiff, showed *Page 751 that the same condition was present on both occasions, possibly a little intensified in the later exhibit. Following the accident, Mrs. Palmer walked into the clinic. The physician says that she complained only of a bump on the head and pains in her stomach.
The jury heard the testimony and returned a verdict.
In this dissenting opinion I only mean to express my lack of comprehension and understanding as to how the transactions presented to the jury could be converted into a judgment of $14,500 in favor of a plaintiff who admitted two serious operations prior to the accident, with their attending impairments; who on the way to Little Rock laughed and joked; who was able to go by car to Waco the following day; who did not call her family physician as a witness; who had mild beginnings of arthritis; who was seen walking around in Ft. Smith the day before the trial, and who after the accident had attended a conference in Dallas. I only mean to say that in view of this record, and the mild nature of the impact, the amount allowed as compensation — even if the defendant were negligent, which it was not — is so grossly excessive as to establish passion or prejudice upon the part of the jury, and the judgment ought not to stand.
I am authorized to say that Mr. Justice SMITH and Mr. Justice McHANEY concur in this dissent.