Opinion
March 10, 1983
Appeal from an order of the Supreme Court, entered December 3, 1981 in Ulster County, which set aside a verdict in favor of plaintiffs rendered at Trial Term (Pitt, J.), and granted a new trial. Plaintiff Richard Palermo (hereafter plaintiff) was injured in a collision between his motorcycle and an automobile owned by Joseph Gambitsky (hereafter defendant) at the intersection of Route 9W and Old Marlboro Turnpike in the Town of Newburgh, New York. Just prior to the accident, both vehicles were traveling south on Route 9W. At the time of the collision, plaintiff was passing defendant's vehicle on the left, and defendant was attempting to turn left onto Old Marlboro Turnpike. Plaintiff sustained two fractures of the right leg, a fracture of the left hand, and lacerations of the knee and shoulder. His leg was in a cast for nine months and required a skin graft, and he was unable to return to work for almost 15 months. After trial, the jury found that the operators of both vehicles were negligent and apportioned the liability 60% against plaintiff and 40% against defendant. The total damages award was $20,700. Plaintiff moved to set aside the verdict on the grounds that the findings as to culpability were against the weight of the evidence and the damages award was inadequate. The court granted the motion and ordered a new trial on all issues. Defendant has appealed. While a Trial Judge has considerable discretion as to setting aside a jury verdict, because of his opportunity to see, hear, and weigh the testimony of witnesses, he should not disturb such a verdict unless it cannot be supported by any fair interpretation of the evidence ( Walsh v Morris, 88 A.D.2d 673; La Porte v. Board of Educ., 57 A.D.2d 1029). In the instant case, there was evidence from which the jury reasonably could have found that both parties were negligent, plaintiff somewhat more so than defendant. Plaintiff and defendant, the only eyewitnesses to the accident, gave conflicting testimony in many respects, thus creating questions of fact and credibility for the jury's resolution. Moreover, although defendant testified to using his left directional signal, checking his interior rear view mirror, and slowing down to 5 or 10 miles per hour before starting to turn, he admitted not seeing plaintiff until after the collision occurred. Since plaintiff was obviously on the road, this was sufficient evidence to support the jury's finding that defendant was negligent in making a left turn without taking adequate precautions to do so safely (see Vehicle and Traffic Law, § 1163, subd [a]). Similarly, plaintiff's testimony, that he was going 45 to 50 miles per hour when he passed defendant at the intersection and that he did not sound his horn or otherwise signal to defendant, would support the jury's finding that plaintiff was negligent, and to an even greater degree than defendant. Therefore, since the jury verdict on the issue of liability can be supported by a reasonable interpretation of the evidence, the Trial Judge erred in directing a new trial on that issue. As to whether the damages award of $20,700 was inadequate as a matter of law, however, we reach a different conclusion. The jury broke down the award as follows: $1,393.94 for property damage to plaintiff's motorcycle, $1,300 for his wife's derivative action, and $18,006.06 for plaintiff's personal injury cause of action. Plaintiff's undisputed medical expenses were $7,220.61. There was evidence that his lost wages for the 15 months he was out of work were $18,000, and the Judge's charge, to which no exception was taken, appeared to set lost wages at approximately that amount. Thus, even if the jury to some extent discounted the amount of lost wages because of prior interruptions in plaintiff's employment history, clearly nothing was included in their verdict for plaintiff's pain and suffering. Under the circumstances, the Trial Judge properly set aside the damages award as inadequate ( Zlatchin v. Wischhusen, 41 A.D.2d 731; Kane v. Bateman, 28 A.D.2d 814). Order modified, on the law and the facts, by reversing so much thereof as directed a new trial on the issue of liability, and, as so modified, affirmed, without costs. Mahoney, P.J., Kane, Casey, Yesawich, Jr., and Levine, JJ., concur.