Bernstein v. Cunningham

SHINN, P. J. The present action was instituted by Bernstein against Cunningham and Rheingold Brewing Company seeking damages for injuries to plaintiff when the car which he was driving was struck in the rear by the car driven by Cunningham allegedly as the agent of Rheingold. In a non-jury trial judgment of nonsuit was rendered in favor of Rheingold and findings and judgment were in favor of plaintiff against Cunningham in the amount of $1,500. In ruling upon plaintiff’s motion for a new trial the court modified its find[285]ings and judgment and substituted the amount of $2,500 for the sum previously awarded and also gave plaintiff judgment against Cunningham for costs in the amount of $155.05.

Bheingold filed a memorandum of costs claiming $181.75. Plaintiff’s motion to tax costs and strike the cost bill was denied in part but the amount claimed was reduced to $59.36. Plaintiff appeals from the judgment and the order denying his motion to strike the cost bill. The appeal is on the clerk’s transcript.

The first ground of appeal is inadequacy of the damages, and the claim is based entirely upon the court’s findings.

In addition to finding the facts of the accident and negligence of Cunningham the court made the following findings:

“ ‘4. Plaintiff made no complaint of personal injuries nor were any apparent immediately after the occurrence; although the next day plaintiff had a transient pain across his upper back and shoulders____

“ ‘6. It is true that for some time prior to the said occurrence but unknown to the plaintiff, his family and his fellow employees, plaintiff suffered from an extensive osteoarthritis of the cervical spine with degenerative changes in the cervical discs; but this condition was quiescent and asymptomatic prior to the said occurrence.

“ ‘7. It is true that while the collision was not severe, plaintiff did suffer as a proximate result thereof a whiplash injury to his cervical spine which precipitated over a pre-existing quiescent condition severe and acute cervical vertebral derangement associated with brachialgia and which gave rise to severe symptoms which he has had and is still having.

“ ‘8. It is true that after the transient pain on May 9, 1956, plaintiff suffered no pain or discomfort until July and that he postponed obtaining medical help to September, 1956, because of an accident to and subsequent death of his mother. Subsequently he received traction at the doctor’s office, at home and in the hospital. He wore an orthopedic collar for approximately four months and is still undergoing home traction. He incurred special damages of approximately $1,000.00 by way of medical and hospital care, orthopedic appliances and drugs. He suffers and will continue to suffer limited motion of the head and neck one third of normal. From July, 1956, to on or about May 1, 1958, plaintiff suffered from severe pain and discomfort. The pain has since