Opinion
March 16, 1971
Appeals from judgments in favor of plaintiffs upon verdicts rendered at a Trial Term and from an order which denied the defendants' motions to set aside the verdicts and for a new trial. The plaintiff, Colleen Fasano, was a passenger in the automobile owned by John W. Wassi and operated by Frank M. Wassi, which automobile was in collision with a truck owned by Newburgh Miron Lumber Corporation and operated by Frank T. Coonan. The accident happened on June 8, 1965. The jury returned verdicts in the plaintiff's favor against the defendants Newburgh and Coonan and no cause of action as to the defendants Wassi. In the action of Frank M. Wassi against Newburgh and Coonan, the jury returned a verdict in favor of the plaintiff. There are two issues on this appeal: (1) The verdicts were contrary to the credible evidence; (2) The verdicts as to the plaintiffs were excessive. The appellants contend, inter alia, that the court's charge as to the defendant Coonan's failure to take the stand was improper and prejudicial. At the trial the plaintiff Fasano read into evidence the entire pretrial deposition of the said defendant and the defendant offered no proof on its case. In response to a request by the plaintiff that by the failure to call the said Coonan, the jury might assume his testimony might be unfavorable to his own case, the court qualified such request by stating: "However, in this case, ladies and gentlemen, you have a situation where a witness was not physically called; however, the testimony of that witness was presented to you as read into the case by the attorney for the plaintiff, so you do not have a particular situation where the version or testimony of a witness not called is not before the jury. So you can take that into consideration in determining whether you want to find that because the witnesses [sic] was not physically put on the stand, that that testimony might have been unfavorable to the defendant." Under such circumstances, the court's charge was harmless. There was a sharp issue of fact as to the negligence of the respective parties and the resolution by the jury is not against the weight of the evidence nor are the other alleged errors substantial. The plaintiff Colleen Fasano was awarded the sum of $17,000 and her father received an award in his derivative action. The record establishes that the contact between the vehicles was not substantial and that both vehicles left the scene under their own power. The accident happened on June 8, 1965 and the trial was conducted in September, 1969, some four years subsequent to the injuries. The plaintiff has been married during the interval and has been steadily employed without any claimed loss of earnings. She was 18 years of age at the time of the accident. Subsequent to the collision she complained of pain in her neck and shoulder and over a period of time consulted with several doctors. The doctor who testified at the trial stated that he had seen her on several occasions during 1967, 1968 and 1969 and she had telephoned him at different times complaining of pain; that he had given medication for headaches and neck pain, placed her in traction and given other forms of therapy. He testified that the occasional neck spasm and resulting pain would be permanent. According the plaintiff the most favorable version of the evidence, as we are required to do, the verdict is excessive and unconscionable, and should be reduced to $9,000. As to the verdict of the plaintiff Frank M. Wassi in the amount of $2,500, while it might be considered a high verdict, it is not so excessive as to require our intervention. In the action of Colleen Fasano, judgment and order reversed, on the law and the facts, and a new trial ordered with costs to abide the event unless plaintiff, within 20 days after service of a copy of the order to be entered hereon, shall stipulate to reduce the verdict in her favor to $9,000, in which event order and judgment, as so modified, affirmed, with costs to plaintiffs. In the action of Frank M. Wassi and John W. Wassi, order and judgment affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.