Avery v. Watje

THOMPSON (Raymond), J. pro tem.† This was an action for personal injuries arising out of a rear-end collision, [661]resulting in claimed whiplash and low back injuries by plaintiff, a 29-year-old sewage treatment plant operator. He recovered judgment on jury’s verdict in the sum of $2,000, and after order denying his motion for new trial, appeals, contending that the trial judge was guilty of abusing his discretion for failing to grant his motion for new trial on the ground of inadequacy of the verdict.

Complaint was filed September 19, 1963, against the defendants John LeRoy Watje et al, which was duly answered, and the case brought to trial. The action grew out of an accident which occurred on September 20, 1962, in Riverside, wherein appellant’s vehicle was struck in the rear by a crane truck driven by the defendant Watje and owned by the corporate defendant, A&A Equipment and Construction Company, Inc.

Following the accident, appellant suffered from a headache similar to one he had had in connection with a prior accident, also a rear-end collision, which had occurred in 1960. The morning following the accident in question, appellant was “feeling bad” and went to see Dr. John Ivanoff, an orthopedic surgeon in the City of Riverside, who took X-rays of the neck and prescribed medication and the use of a cervical collar which, incidentally, was the same collar he had used in connection with his prior accident. The record is unclear as to the exact date, but at some later time appellant returned to the doctor’s office complaining of pain in the low back, and at that time X-rays were taken of the dorsal segment of the spine, which were negative. Appellant continued to complain of pain; however, his complaints were equivocal and varied from time to time, there being periods when he was free of symptoms so far as the low back was concerned. In July 1963 he was hospitalized, placed at bed rest, given medication for pain, and placed in pelvic traction. About this time, Dr. Ivan-off performed a nonsurgical procedure of a sciatic nerve stretch, which seemed to relieve the symptoms. Defendant left the hospital on August 6, 1963. He continued to have complaints of low back pain, radiating to the toe, and was again hospitalized in April 1964, when he had a lumbar myelogram performed. On May 11, 1964, appellant was readmitted to the hospital for a laminectomy, in which it was found there was a bulging protruding disc on the lumbrosacral level.

We need not detail all of the evidence, but will note that Dr. Ivanoff testified that in his opinion the injury in question constituted an insult to a previously existing degenerate condition of the disc which was finally removed. Plaintiff claims