Opinion
March 10, 1943.
Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.
Judgment and orders affirmed, with costs.
I believe that the verdict against the infant plaintiff was against the weight of evidence. It was conceded on the trial that she was free of contributory negligence, but despite this the trial court submitted as a possible basis of a verdict of no cause of action in her case the question of her contributory negligence. So it is impossible to determine from this record as to whether the verdict against her was on account of contributory negligence or on account of her failure to prove substantial damages. Unless she and her family and her physician have deliberately perjured themselves, she did suffer injury and damage. It may be that the jury was influenced by the charge in reference to contributory negligence or what was apparently an overestimation of damage on the part of the plaintiff and her witnesses. The testimony of Dr. Large, who said he found nothing, also contained a statement that he found evidences of adhesive bandages. (The judgment is for defendant Kyle for no cause of action, in an automobile negligence action. The orders deny plaintiff's motions for a new trial as to the two defendants.)