Crumback v. Murdock

BARNARD, P. J. This is an action for damages for personal injuries resulting from a collision between an automobile operated by the plaintiff and a pickup truck owned by the [128]defendant Foss and operated by the defendant Murdock. The accident happened on December 2, 1944, and the trial of the action was begun on May 21, 1945. A jury brought in a verdict in favor of the plaintiff for $25,000, and the defendants have appealed from the judgment which followed.

The only point raised is that the amount of damages awarded is grossly excessive and could have been arrived at only through the influence of passion and prejudice. Incidentally, it is argued in this connection that, although conflicting, the evidence on the issue of liability was very close; that the jury was out only forty minutes; and that it follows that the jury must have given no real consideration to the evidence with respect to the extent of respondent’s injuries. We do not regard the evidence on this issue as close. Liability clearly appears from the testimony of the defendant driver himself, and it may not be assumed that the jury spent much time on that issue.

Briefly stated, the appellants argue that the evidence clearly shows that the respondent was still improving at the time of the trial, a little less than six months after the accident, and that there is no satisfactory evidence of any permanent disability. It is argued that even the respondent testified that his back was improving and his headaches becoming less frequent ; that the doctor called by the respondent testified that a good restoration had been had of the shape of the vertebra which had been broken; and that the doctor called by the appellants testified that he found everything healed and normal, that the prognosis was good, that he could find nothing which would prevent the respondent from resuming his normal occupation but this would depend considerably on the individual, and that the respondent’s headache and dizziness condition was subsiding. What the respondent testified in this regard was that he did not then have headaches as often as he did “the first month or two” and that the pain in his back was 1 ‘less than it was at first. ’ ’ This could well be true without indicating a continuing improvement at that time. While the respondent’s doctor testified that he considered that there had been a good restoration as far as the shape of the broken vertebra is concerned his testimony, as a whole, indicates that other conditions were not so satisfactory. Even the testimony of the appellants’ doctor lends itself to a different interpretation from that which they suggest.