Averdieck v. Barris

KOFORD, P. J.

The plaintiffs, being the surviving widow and children of Richard Averdieck, deceased, recovered a judgment of four thousand dollars for the death of said deceased, caused by the negligent operation of an automobile driven by the defendant. The defendant appeals from the judgment upon the ground that the evidence is insufficient to prove that the negligence of the defendant resulting in injuries to the deceased was the

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proximate cause of the death of said deceased and upon the further ground that the amount of the verdict is excessive.

The accident to the deceased occurred October 13, 1921, and the death occurred on May 27, 1923, about nineteen and one-half months later. The deceased was at the time of his death sixty-three years old and the cause of his death according to the testimony and death certificate, was eardia vascular renal disease.

The appellant’s argument is scracely distinguishable from an argument upon the weight of the evidence. Appellant emphasizes the quality and directness of the expert witnesses called on behalf of the defendant without printing the expert testimony opposed to them. The respondent, in reply, quotes the testimony of a physician who testified as an expert witness on behalf of the plaintiffs. This physician testified in response to hypothetical questions based upon the testimony of members of the deceased’s family and other witnesses. The testimony of this physician covers thirty pages of the typewritten transcript. It is only necessary to consider as much of it as is relied upon in support of the verdict. This physician first testified that an injury which would cause the deceased to remain in bed in the hospital, in bed and in an armchair at home, and to discontinue his usual activities, would have a degenerative effect upon his heart and that such degenerative effect on the heart of a man of the age of deceased if continued would result in death. He explained in some detail the reasons for his opinion. It was then stipulated that the injuries received by the deceased resulted in fractures of the collar-bone and of the fifth to tenth ribs, inclusive, on the left side. When the serious nature of the injuries was thus made known to this expert witness, he explained the possible and probable results of such injuries and gave it as his opinion that the heart disease with the involvement of the blood vessels and kidneys resulted from the injuries received by the deceased at the time of the accident. The testimony of the widow of the deceased was to the effect that deceased was well and active until the time he received the injuries and that since that time until his death he had never recovered, but had