Opinion
March 13, 1962
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
This is an appeal by plaintiffs from a judgment in an automobile accident negligence case. The jury in the action of plaintiff Josiah, owner and operator of the automobile, rendered a verdict of no cause of action and in the companion action of Lillian, a passenger, found a verdict against the defendants for $1,500. The plaintiffs contend that the verdict of no cause is against the weight of the evidence and that the verdict given to Lillian is inadequate. The accident happened on October 20, 1957 at about 3 o'clock in the afternoon on Route 9W. It was a clear day, the road was dry and straight and vision was unobstructed. The plaintiff Josiah was driving his automobile in a northerly direction on a three-strip concrete road, turned right to enter a driveway and when his automobile was partly off the road, it was struck in the right rear by the automobile of the defendant. The plaintiff claims that at all times he remained in the right lane, but the defendant testified that the plaintiff pulled into the middle lane and then turned right. There was also testimony as to the speed of the vehicles, the alleged failure to give or see any signals, tire marks on the surface of the highway and other testimony of alleged acts of negligence on the part of both drivers. The jury who saw and heard the witnesses, after a proper charge by the court, rendered a 10-2 verdict in favor of the defendants as to the plaintiff driver and while plaintiff argues the verdict is against the weight of the evidence, we are satisfied, after examining the record on appeal, that there was a sufficiency of proof to sustain the verdict. As to the plaintiff passenger, it is alleged that the verdict was grossly inadequate. The testimony shows that the injuries resulting directly from the accident consisted of "a whiplash injury to the neck, a sprained neck and an injury to the back of the chest" and the jury could determine from the evidence that she made an uneventful recovery from these injuries. It is further apparent from the record that the plaintiff was suffering from some prior physical ailment, as evidenced by her testimony and that of her physician who was called and sworn as a witness for the defendants. The record is barren of any probative evidence that the injuries sustained in the accident in any way aggravated or accelerated this pre-existing condition. The jury could and apparently did decide the plaintiff was suffering from this pre-existing progressive disease described as multiple sclerosis and concluded that the accident had no effect upon its progression. While some other jury might have given a larger amount in compensation for the direct injuries associated with the accident, we are unable to find, on this record, any compelling reason for interfering with the determination of the jury verdict in either case. Judgment unanimously affirmed, without costs.