Opinion
November 5, 1970
Judgment of the Supreme Court, Bronx County entered on February 2, 1970, in favor of the plaintiff-respondent (plaintiff) after jury trial, reversed, on the law and the facts, without costs and without disbursements, and a new trial directed, which trial is to be confined to the issue of damages only. Plaintiff, a passenger in the car of her son-in-law, defendant George Gnoffo, sustained serious injuries on September 20, 1966, when Gnoffo's car was involved in a collision with a car owned and operated by defendants Vaccaro. In the ensuing action brought by plaintiff, and following a jury trial, plaintiff obtained a judgment in the amount of $105,289.75. Reversible error was committed in the charge to the jury with respect to damages. The court, in substance and effect, charged the jurors to ask, each of himself, what he would want or what he would take for the discomfort, pain and suffering experienced. This is error ( Weintraub v. Zabotinsky, 19 A.D.2d 906). The plaintiff was entitled to recover reasonable compensation or such an amount as would fairly compensate for her injuries and her pain and suffering ( Robison v. Lockridge, 230 App. Div. 389; Paley v. Brust, 21 A.D.2d 758). Plaintiff as a passenger, on this record, was properly found to be without fault in the premises, and the jury could have found, as it did, that the negligence of both defendants contributed to her injuries. However, since a new trial on the issue of damages is directed, it might be well to note that at least some of us view the sum awarded as grossly excessive in light of the injuries suffered.
Concur — Stevens, P.J., McGivern, Markewich and Steuer, JJ.