HENDERSON et ux.
Rehearing Denied June 22, 1954.
[77 Ariz. 258] Conner & Jones, Tucson, Fennemore, Craig, Allen & Bledsoe, Phoenix, for appellants.
Stevenson & Goldberg, Tucson, for appellee.
The problems presented herein resulted from litigation between Charles E. Breesman, as plaintiff, and Edward Whitehead, Jane Doe Whitehead, his wife, George Henderson and Helen Henderson, his wife, as defendants, arising out of an automobile accident which occurred in the nighttime at the intersection of Warren Avenue and Spring Street in Tucson, Arizona. From a verdict and judgment in favor of plaintiff in the sum of $18,284, defendants Henderson appeal and submit ten assignments of error. These will be disposed of, not necessarily in the order presented, but in such manner as to decide the essential legal questions. The parties will be referred to as plaintiff and defendants.
Warren Avenue runs north and south and Spring Street east and west. The plaintiff was driving north on Warren Avenue and the defendant Edward Whitehead, driving the automobile of defendants Henderson in the course of his employment as their agent, was traveling east on Spring Street.
The court's instruction on the measure of damages in the event the jury found for the plaintiff included as elements thereof such medical expenses as the jury believed the plaintiff would probably have to spend in the future, if any, and also the element of the permanent impairment of his earning capacity as the jury might feel [77 Ariz. 259] the plaintiff had probably sustained, if any. The defendants contend the jury should not have been allowed to consider these elements for the reason that there was no evidence to support the same.
The plaintiff suffered severe injuries including a fracture of the left arm, cerebral concussion and was unconscious or in a semi-comatose condition for approximately a week. There is evidence he still has an eye injury and suffers from headaches. A doctor testified to the possible permanency of the injury. We have held that even without medical testimony, the nature of the injuries alone might warrant an instruction allowing the jury to consider the injuries permanent. City of Phoenix v. Mullen, 65 Ariz. 83, 174 P.2d 422. Without a detailed description of his injuries, we think all the evidence would warrant a finding of some permanent injury. We are unable, however, to find any evidence that would authorize the jury to consider future medical expenses or permanent impairment of earning capacity. The mere fact alone that there may be some permanecy to the injury is not enough. This court is committed to the proposition that the jury cannot be allowed to speculate or guess in making allowance for future medical expenses; there must be some data furnished the jury upon which it might reasonably estimate the amount to be allowed for this
item. Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. 132; 25 C.J.S., Damages, § 162b(5), page 829. Of course, at best it is a mere estimate and cannot be determined with accuracy, but there must be some evidence to authorize the estimate. The jury cannot be left to guess the probable nature treatment or the probable expense thereof.
The same situation exists as to the permanent impairment of earning capacity. At the time of the trial and for sometime prior thereto, the plaintiff had been engaged in the same work (bus driver) with as much income as prior to the accident. There is nothing in the evidence indicating the probability that this situation will change in the future. It is our view, therefore, that the jury should not have been allowed to consider future medical expense nor future decreased earning capacity in assessing plaintiff's damages.
Over defendants' objection and at the request of the plaintiff, the court gave the following instruction:
'I charge you that at the time of the accident in this case and immediately prior thereto while Edward Whitehead was proceeding along Spring Street, it was his duty to drive his vehicle on the right half or right side of the road. And, if, at the time of the accident, the car which he was driving, or any part of that car, was not on the right half of Spring Street, then he was driving in violation of the laws of this State.'
[77 Ariz. 260] The rule is that instructions should state the law as applicable to the facts which the jury is warranted in finding from the evidence. It will be observed that the instruction tells the jury in effect that if any part of defendants' car was at the time of the accident on the left side of the road, the driver thereof, irrespective of what caused his position, was guilty of violating the law. Under some circumstances one may legally be on his left half of the highway. The correctness of this instruction, therefore, must be tested by what are the possible facts, depending on how the jury weighs the evidence. If the defendants' car or any part thereof was over the center line at the time of the accident, and there were no possible facts that would legally excuse this position, the instruction was correct. On the other hand, if the jury may find facts which would legally justify his presence across the center line, we think the instruction was erroneous. There was evidence that the defendant driver approached the intersection on the wrong side. There was also evidence that he approached and entered the intersection on his right half of the road. There was evidence that he swerved his car to his left in an attempt to avoid the accident. There was evidence that the impact was north of the center line of Spring Street, one witness locating it a distance of about three feet. We know not how the jury viewed the evidence but we are of the view that it could have found that the driver of defendants' car approached the intersection on his right half of the road and that the necessity of an emergency placed him across the center at the time of the impact. If such be the facts, he is excused and would not be in violation of the law. Haner v. Wilson-Coffin Trading Co., 49 Ariz. 402, 67 P.2d 487. Our view is that this instruction does not correctly state the applicable law to all the possible facts and is therefore erroneous.
The plaintiff contends that because the court gave defendants an opportunity to submit a separate instruction covering this factor and they failed to do so, they cannot complain. This is not a case of amplifying an instruction which is correct. It is difficult to see how a separate instruction ...