Blye v. Affonso

[242]

BRAY, P. J.

Plaintiff appeals from a judgment, after jury verdict in her favor for $650, in an action for personal injuries arising out of an automobile collision.

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Question Presented

Inadequacy of damages.

In February, 1957, a truck owned and operated by defendants and an automobile in which plaintiff and her mother, Mrs. Brown, were riding, collided. Plaintiff claims to have received injuries in such collision.

Damages

Plaintiff contends that because she was awarded only $650—a sum only $39.43 in excess of her special damages, it appears that an inadequate verdict was returned because of passion and prejudice. She further contends that the cross-examination of Mrs. Brown in the consolidated case of

Brown

v.

Affonso

and the remark of defendants’ counsel set forth in that case, caused the jury to be prejudiced against plaintiff Blye, who ivas Mrs. Brown’s daughter. In his opening statement to the jury plaintiff Blye’s counsel stated: “Outside of being a little bit bruised and shaken up and, of course, worried about her mother, . . . [Mrs. Blye] did not feel that she was hurt to any great extent. . . . [She] was feeling a little pain in her low back, but didn’t think it sufficient to require any medical treatment. ...” At home she “still had a little discomfort in her low back but not sufficient to require medical treatment . . . [S]he has been left without any residual.” Plaintiff’s main claim for damages was based upon her contention that a miscarriage occurred about 10 days after the accident (she then being about two months’ pregnant), which her doctor opined was due to the accident. However, there Avas evidence that she had previous miscarriages in 1950, 1951, 1952 and 1953 (all under three months’ pregnancy). Her own doctor conceded that this could constitute her a “habitual aborter” (meaning involuntary miscarriages). The jury were not bound to accept plaintiff’s doctor’s opinion as to the cause of the last miscarriage. (See