Opinion
Oct. 2, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Leland S. Huttner, P.C., Denver, for plaintiffs-appellants.
Sheldon, Bayer, McLean & Glasman, Richard C. McLean, Denver, for defendants-appellees.
ENOCH, Judge.
This action was brought by Cheryl Jean Bridgewater and her mother, Helen Noble, for damages resulting from injuries allegedly suffered when defendant Wilson's automobile struck the rear of an automobile driven by Miss Bridgewater. At the close of the evidence, the trial court directed a verdict in favor of plaintiffs on the issue of negligence, and submitted to the jury the questions of proximate cause and the amount of damages, if any, which plaintiff should recover. The jury awarded stipulated property damages of $50 to Helen Noble and no damages to Miss Bridgewater for her alleged injuries or medical expenses incurred with respect thereto by Mrs. Noble. The sole issue raised on appeal is whether the trial court erred in refusing to grant plaintiffs' motion for a new trial based on the allegedly inadequate damages assessed by the jury. We affirm.
Plaintiff Bridgewater sought to establish an alleged neck strain injury by her testimony and by testimony of an orthopedic surgeon whose diagnosis was based solely on plaintiff's subjective symptoms, rather than on objectively verifiable tests. A physician who examined plaintiff at defendant's request also testified that, on the basis of plaintiff's report of the accident and her subjective symptoms, he concluded that she had suffered a 'flex extension type strain of the neck.'
Where an alleged injury is evidenced only by subjective complaints of the plaintiff, uncorroborated by objectively verifiable medical evidence, it is within the proper function of the trier of fact to determine whether, in fact, plaintiff sustained an injury. See Preuss v. Schoonover, 154 Colo. 531, 391 P.2d 880.
We have considered the cases cited by plaintiff in which the jury's damage award was held to be inadequate as a matter of law. In each of the cases cited, except possibly Staples v. Langley, 148 Colo. 498, 366 P.2d 861, there were clear external manifestations of the alleged injuries. In Staples, the supreme court stated that although there was some dispute as to the origin of the claimed injury, the fact that the plaintiff 'suffered some personal injury in this accident . . . is believed to be both obvious and irrefutable.' In the case at hand, whether or not there was an injury was a subject of legitimate dispute. Plaintiff had the burden of proving that she suffered an injury as a result of the accident. The jury as trier of fact concluded that she did not carry that burden, and its findings will not be disturbed on review. See Roth v. Stark Lumber Co., 31 Colo.App. 121, 500 P.2d 145.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.