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Simms v. Progressive Insurance Co.9/29/2004
The accident occurred in daylight under ordinary driving conditions. As shown by photographs of the accident scene and as described by Tobey Whaley, the driver of the van and the person who spoke to Simms just prior to the accident, the accident occurred in a "fairly open area." Simms was struck by Williamson's vehicle as she crossed the highway to check a mailbox. Her testimony reveals no reason for her failure to see Williamson's oncoming vehicle and yield the right of way to him. Simms testified that she looked to the left and right of the highway and saw nothing to prevent her from crossing the road. Even once she got to the center line of the highway, she still did not see anything to prevent her from crossing the road. It is evident that Simms failed to see what should have been seen and that she entered the highway without yielding the right of way to oncoming vehicles. Clearly, Simms was at fault.
Williamson admitted that he had a clear sight of the road ahead. However, defense counsel posited the theory that Williamson's view of Simms was blocked by the van driven by Tobey Whaley. Whaley had been driving the van alongside Simms on Petrochem Drive and then turned onto the highway around the time that Simms began to cross the highway to reach the mailbox. The defense argued that the van entered the highway at the same time as Simms, blocking Williamson's view of Simms. This was supported by expert analysis entered into evidence and the testimony of Perot, who was traveling north on Highway 531, witnessed the accident, and was struck by Williamson's vehicle. Perot testified that he saw the van on Petrochem Drive and Simms next to it. The van turned onto the highway. Simms looked, walked out into the highway behind the van, and proceeded west across the highway without stopping. Cross examination established that Perot was about 1,000 feet away when he saw the van and Simms enter the highway.
The jury obviously rejected the defense's theory. The jury's decision was reasonable in light of Williamson's own testimony during which he admitted that he had a clear sight shot of the road ahead and that nothing prevented him from seeing Simms in the roadway. Although Williamson testified that the only explanation he could come up with for not seeing Simms was that something must have blocked his view, he could not recall anything that actually blocked his view. In fact, Williamson testified that he did not even see the van. This testimony belies the defense's theory of the case. The jury could have reasonably concluded that Williamson's view was not blocked by a van that he did not even recall seeing. In addition, the jury could have reasonably concluded that Williamson simply failed to exercise due care to see what an ordinarily prudent driver should have seen.
Having reviewed the testimony and evidence presented at trial, we find no manifest error in the jury's finding of negligence by both parties and the allocation of fault between them. The allocation of fifty-five percent of the fault to Williamson and forty-five percent of the fault to Simms cannot be said to be clearly wrong or manifestly erroneous.
Damages
Appellants seek a reduction of the awards for general damages and loss of consortium. They argue that the award of general damages is excessive and is reflective of sympathy for Simms rather than responsive to the evidence presented.
General damages are those that may not be fixed with pecuniary exactitude. Mental and physical pain and suffering, inconvenience, loss of physical enjoyment, and other losses of lifestyle are damages that are not subject to exact measurement in monetary terms. Orea v. Scallan, supra.
Becaus
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