Opinion
December 29, 1949.
Appeal from Supreme Court, Ulster County.
Before daylight on a foggy morning plaintiff ran his vehicle into defendants' truck standing on the travelled portion of a main highway. The jury could have found there were no lights on the standing truck, or flares near it. In circumstances of limited visibility the question of contributory negligence of the driver running into a standing vehicle is usually left for the jury ( Lonstein v. Onondaga Frgt. Corp., 265 App. Div. 978; Pietraszewski v. American Ry. Express Co., 210 App. Div. 866). The verdict in respect of the contributory negligence is not against the weight of the evidence. The verdict, however, is excessive. The sum of $25,000 was allowed plaintiff for personal injuries and $750 for damage to his truck. Plaintiff suffered a lacerated wound on the back of his head two inches long, which required four stitches to close, a contusion of the sternum and an undescribed "injury" to his mouth, and complained of pain in the lower back and right hip. He was in a hospital three weeks, during which time he was treated for a cold as well as for his injuries. He complained of pain in his back and was given diathermy treatments over a period of several years, in one year (1946) three times; in another (1948) seven times. His back "bothered" him. His own physician felt he had a ruptured vertebral disc, although he did not make a test which would have accurately determined this. A physician called by defendants though he had a sacro-iliac strain. His total medical, hospital, dental and nursing bills were $1,050.50. There is no medical proof that he could not work within a reasonable time after his injury. The amount of damages is in the province of the jury, but the court owes a duty to litigants to guard against excessiveness as well as inadequacy. This verdict is so disproportionate to the injury that it is not within reasonable bounds. Judgment and order appealed from are reversed, on the law and facts, and a new trial ordered, with costs to abide the event, unless the plaintiff within ten days of notice of entry of the order herein file a stipulation with the clerk of Ulster County consenting that the verdict be reduced to $12,750, and if such stipulation be so filed the judgment and order are affirmed, with costs. Brewster, Deyo and Bergan, JJ., concur; Foster, P.J., and Heffernan, J., dissent and vote to reverse and for a new trial.