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BARKLEY v. FREEMAN2/28/1992
Ivan L. Freeman appeals a jury verdict of $165,156.75 in favor of Carol J. Barkley for damages from whiplash injuries she sustained after the car in which she was riding was rear-ended by a car driven by Freeman.
Freeman's primary issue on appeal is that the trial court erroneously instructed the jury it could consider whether Barkley's
injuries were aggravated by a later automobile accident and, if so, she was entitled to additional compensation from Freeman.
Freeman also claims he was unfairly prejudiced by erroneous rulings, remarks concerning the evidence, and criticism of defense counsel in the jury's presence. The final contention on appeal is that the trial court erred by overruling Freeman's motion for directed verdict, which allowed the jury to consider Barkley's claim for loss of future earnings.
Evidence at trial showed Barkley had been involved in three automobile accidents. The first, in 1985, resulted in a slight pull in the neck muscles with a return to normalcy until the January 1989 accident, which is the subject of this litigation.
Barkley also was involved in an automobile accident in November of 1989. Barkley testified she did not believe she was injured in that accident, but her physician, Dr. Jed Holmes, testified the subsequent accident did aggravate the injuries caused by Freeman in the January 1989 collision.
At the close of trial and over Freeman's objection, the trial court gave instruction No. 7, which states:
"In your evaluation of plaintiff's injuries occurring on January 13, 1989, you may take into account whether or not those injuries were aggravations of a pre-existing injury or condition.
"You may also take into account whether or not those injuries were aggravated by a later injury.
"If those before and after injuries did not affect plaintiff's condition arising from her injury of January 13, 1989, then you would of course, disregard them.
"If you decide the injury before created a condition or there was a preexisting condition which was aggravated by the present injury then the aggravation is to be compensated for as a part of your verdict.
"If you decide the later injury prolonged the effects of or aggravated the plaintiff's injuries occurring on January 13, 1989, then plaintiff is entitled to be compensated as a part of your verdict.
"If you decide the later injury separately and independently from preexisting conditions and separately and independently from the injuries sustained on January 13, 1989, under inquiry has made a separate disability to plaintiff she is not entitled to compensation for that.
"The facts of an earlier and later automobile accident are not to be considered by you in any way in your determination of fault or liability. They are admitted for the sole purpose of your being able to consider whether or not injuries therein sustained contributed in any way to plaintiff's condition arising from injuries occurring on January 13, 1989."
After Freeman's post-trial motions, which essentially featured his continuing objection to instruction No. 7, were overruled, he filed this appeal.
Freeman contends the language contained in jury instruction No. 7 is erroneous because it makes him liable for the injuries incurred in a subsequent automobile accident resulting from another driver's negligence and has the effect of allowing Barkley to recover from the later negligent driver as well.
Barkley argues Freeman is barred from asserting his contention because he fail
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