TURNER et al.
Howard G. Vineyard sued Charles Theo Turner and Miller Motor Express, Inc., a corporation of the state of North Carolina, to recover for personal injuries sustained when the automobile in which plaintiff was a passenger collided with the rear of a tractor-trailer owned by the truck company and operated by the individual defendant. The Superior Court, New Castle County, No. 268, C.A.1949, rendered judgment for plaintiff, and defendants brought error. The Supreme Court, Herrmann, J., held that the evidence sustained the verdict for plaintiff.
Award of $2,500 for pain and suffering and $5,000 for permanency of injury was not excessive where injuries consisted of fracture of left pubic bone, injuries to lumbar sacro region, bladder, and right eye, fractured metacarpal bone in left hand, and mild atrophy of left shoulder, and where plaintiff would be permanently deprived of partial use of his left hand and shoulder and such loss of use would permanently interfere with his occupation as farmer.
[46 Del. 140] William H. Bennethum and Morton E. Evans (of Morford, Bennethum, Marvel & Cooch), Wilmington, for defendants below, plaintiffs in error.
William Poole and Richard F. Corroon (of Southerland, Berl & Potter), Wilmington, for plaintiff below, defendant in error.
RICHARDS, C. J., SEITZ, Vice Chancellor, and TERRY, CAREY, and HERRMANN, JJ., sitting.
Plaintiff brought an action for damages for personal injuries, asserting negligence on the part of the defendants. After a trial before the court, sitting without a jury, the court found for the plaintiff and judgment was entered in his favor for the sum of $8,585.74. The defendant obtained the issuance of a writ of error out of this court.
The basic facts found by the trial court are these: On April 3, 1948, the plaintiff was a passenger in an automobile which was being operated by Kenneth Moore in a southerly direction on the dual highway just north of Smyrna, Delaware. A tractor-trailer, owned by the defendant Miller Motor Express, Inc., was being operated [46
Del. 141] by the defendant Charles Theo Turner in a southerly direction on the highway ahead of the Moore automobile. As the two vehicles approached an intersection in the highway, Moore drove from the right-hand lane into the left-hand lane and began to overtake and pass the tractor-trailer which was then being operated in the right-hand lane. Moore's automobile was overtaking the tractor-trailer, and was approximately 75 feet behind it, when the tractor-trailer crossed the center line of the highway and entered the left-hand lane, preparatory to making a left turn at the intersection. This movement of the tractor-trailer was made without signal to Moore of intent to change from a direct line of operation. Moore was driving at a speed of about 45 miles per hour. When he saw the tractor-trailer move to the left on the highway, he applied his brakes and swerved back into the right-hand lane. At the same moment, Turner saw the Moore car in his rear view mirror and, realizing that he was turning into the path of an overtaking automobile, Turner also swerved back into the right-hand lane. Turner then applied his brakes. The Moore automobile collided with the rear of the tractor-trailer and the plaintiff-passenger was injured.
Upon these facts, the trial court found that the defendants were guilty of negligence which was a proximate cause of the accident. As the bases of this ultimate finding, the trial judge made certain subordinate findings, among which were the following:
1. ‘ The original negligence (of the defendant) in failing to give timely warning of his intention to turn left was a major proximate cause * * *.’
2. The defendant's ‘ sudden swing back into the right-hand lane and stop immediately in front of plaintiff's car was a minor contributing cause to the result.’
3. The crossing of the center line by the tractor-trailer ‘ justified plaintiff's driver in believing defendant was about to turn left as, indeed, he admitted he was going to do.’
4. ‘ Defendant by failing to give a timely signal had placed plaintiff's car in danger by starting to swing in front of him * * *.’
5. At the moment when plaintiff's driver applied his brakes and ‘ swung right’ the defendant ‘ seeing the danger he had placed [46
Del. 142] plaintiff in by his intended left-hand turn, swung back to his right also and came to a sudden stop.’
6. ‘ * * * plaintiff's driver was going too fast to stop and avoid collision at the moment defendant's truck swung without warning into the left-hand lane, thus forcing plaintiff's driver to swing right in order to avoid collision.’
The defendants assign as error that the above-mentioned subordinate findings of the trial court, and its ultimate finding of negligence, are not supported by the evidence. The contention of the defendants is two-fold in nature. First, they find fault with the subordinate conclusions for which, they contend, no direct evidence can be found. The fallacy of
this contention is that a finding of fact need not be premised upon direct evidence; it may be based upon inference. Secondly, the defendants urge this court to reconsider all of the evidence and to conclude therefrom that the ultimate finding of negligence is a wrong conclusion, lacking logic and rationale. This would amount ...