Opinion
May 11, 1971
Judgment, Supreme Court, New York County, entered on March 26, 1970, after jury trial, adjudging recovery in favor of plaintiff infant, for personal injuries, in the sum of $15,222.20, and the sum of $1,000 in favor of the father and natural guardian, unanimously affirmed, without costs and without disbursements. In affirming, we do not countenance some facets of the trial, nor some of the rulings and dispositions of the Trial Judge. Inter alia: The failure to call one of the examining doctors by the defendant did not warrant the charge, based on request of plaintiffs' counsel, as given by the court. This physician, retained by the defendant only for examining purposes, bore no special nor personal relationship to the plaintiff, Patrick La Lima; he was not the treating physician, as was Dr. Giattini, who testified, nor was he the family physician, and since already there was the testimony of two other physicians, one testifying on behalf of defendants, his testimony would have been merely cumulative. (See Rudnik v. Norwich Pharmacal Co., 34 A.D.2d 912.) Furthermore, his testimony would have touched only on the subject of damages, and the amount awarded is not shockingly disproportionate to the injuries sustained. Thus, this error does not warrant our disturbing the verdict. Nor do we approve the court's taking notice of life expectancy tables when the medical testimony on the permanency of the injury was far from definitive. However, here too, in a day of overcrowded calendars, we do not find this error substantial or sufficiently prejudicial to call for a new trial, and we choose to disregard it, particularly as the limited award made by the jury indicates the jury was not swayed by the allusion nor did it base its award on a conclusion of permanent injury. ( McGann v. Drennan, 252 App. Div. 863.)
Concur — McGivern, J.P., Markewich, Kupferman, Tilzer and Eager, JJ.