Opinion
November 22, 1967
Appeal by plaintiff (1) from a judgment of the Supreme Court, entered upon a verdict of $1,272.10 in a personal injury negligence action, on the ground of inadequacy, and (2) from an order of said court which denied plaintiff's motion to set aside the verdict as inadequate. Plaintiff's only injuries occurred when her right foot was "jammed up under the front floor board" of defendant's testator's automobile when it collided with a tree. According to the uncontradicted medical testimony, she sustained "a severe tearing of the ligaments of the inside and of the outside of the ankle, and as the x-rays revealed, she had a fracture of the distal end, that is the lower portion of the fibula * * * the ends of the two bones of the leg at the ankle. Now, small fragments of bone had been pulled from the bone. In tearing the ligaments, she had fractured the ends of each of these bones on the inside, and the outside of the ankle." The doctor further testified: "I gave her pain pills and medication, and discharged her to bed rest at home, to elevate her legs, and pressure dressing was applied until the swelling and hemorrhage which had occurred in her foot and about her ankle would be somewhat subsided, so I could put a cast on her with comfort." She remained in the cast subsequently applied for a period of one month. She was not discharged from her physician's "active treatment" until 21 months after the accident. The doctor described the permanent effects of her injuries as (1) "the slight persisting swelling after being on her foot for a period of time, which is minimal"; (2) "aching or pain, though not of severe degree"; (3) "the grating [of bone fragments], which is objectively palpable there"; and (4) "the thickening of the tissues about the joint due to the tearing of the ligaments and scar tissue that has been laid down due to the hemorrhage and injury to the ligaments". She was, according to her doctor, totally disabled for six months after the accident and partially disabled for six months thereafter. Plaintiff's expenses for medical and hospital treatment and medication were approximately $500; and the verdict originally returned by the jury included the amount of $388.75 received by plaintiff under the medical payments provisions of testator's automobile liability insurance policy, the deduction of which reduced the verdict to $1,272.10. Plaintiff's recovery was clearly inadequate. Judgment and order reversed, on the law and the facts, with costs to appellant, and a new trial, limited to the issue of damages, directed. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.