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Willman v. Wall3/14/2000
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of Buchanan County, Hon. Randall R. Jackson, Judge
Opinion Vote: AFFIRMED. Stith, P.J., Ulrich and Smart, JJ., concur
Opinion:
Homer Wall appeals the judgment of the trial court entered in favor of Alvin Willman in the amount of $180,000 in Mr. Willman's action for personal injuries and property damages arising out of a February 16, 1997 automobile accident. Mr. Wall claims that the trial court erred in excluding the testimony of Erica Wall, Mr. Wall's eleven-year-old daughter, regarding the speed of Mr. Willman's vehicle at the time of the accident. Mr. Wall also claims that the trial court erred in denying his motion for a new trial or remittitur. The judgment of the trial court is affirmed.
On the afternoon of February 16, 1997, Alvin Willman was travelling south on I-29 a few miles south of St. Joseph when the vehicle he was driving was struck in the rear by a vehicle driven by Homer Wall. Mr. Willman was driving a 1986 extended cab Ford pickup truck and towing a 1977 orange Ford van. Mr. Wall was driving a 1988 Oldsmobile. Mr. Wall's nine-year-old daughter, Erica, was a passenger in the front seat of his car at the time of the accident.
The maximum speed limit on I-29 at the time of the accident was 70 mph. The minimum speed limit was 40 mph. Just prior to the accident, Mr. Wall was driving 70 mph. He and Erica were playing a word game. The object of the game was to find letters of the alphabet on road signs along the highway. Mr. Wall first saw the van being towed by Mr. Willman a quarter of a mile ahead of him as he approached it. He did not believe the van was travelling any slower than his car. He testified that he looked away from the highway to continue the word game with Erica, and when he looked back one second before the accident, the van was less than 100 feet in front of his car. Mr. Wall applied the brakes, but his car struck the rear of the van. Mr. Willman testified that he was driving 50 mph at the time of the collision. Mr. Wall estimated that Mr. Willman was driving 20 to 40 mph when his car collided with the van. One witness to the accident estimated that Mr. Willman was driving between 40 and 50 mph when his van was struck by Mr. Wall's car. A second witness estimated that Mr. Willman was driving 55 mph or less when his van was hit.
Mr. Willman experienced some neck pain immediately after the accident but did not seek medical treatment that day. He did see a chiropractor the day after the accident when his neck pain worsened, and the chiropractor diagnosed a cervical sprain/strain. A month and a half later in April 1997, Mr. Willman again sought treatment from his chiropractor for neck pain and pain in his right arm. An MRI performed on his neck revealed a herniated disk.
At the time of trial, Mr. Willman continued to have range of motion difficulties, neck stiffness, and pain, was less physically active, and had difficulty performing his job as a plumber. He had incurred medical bills totaling $8,427. Surgeries for his neck and wrist had been presented as options to Mr. Willman. The estimated cost of the surgeries was $23,500 for his neck and $8,000 for his wrist. Mr. Willman estimated that he would lose $10,000 in wages if the surgeries were performed. Prior to the accident, Mr. Willman's pickup had a fair market value of $6,000 to $7,000. After the accident, it was worth $100.
At trial, the court submitted to the jury the issue of Mr. Willman's comparative fault for operating his vehicle at a speed of less than 40 mph on the interstate. The j
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