Opinion
May 22, 1967
Appeal on the ground of inadequacy from a judgment of the Supreme Court, Broome County, entered upon an unanimous jury verdict which awarded plaintiff the sum of $2,250 for her personal injuries and damages. Plaintiff was a passenger in an automobile when it collided with defendant's car. There is no claim that she was negligent and it is undisputed that she sustained a fractured right ankle and some superficial cuts and bruises. The sole question before us is whether or not the jury's verdict was inadequate and this depends almost entirely on whether or not an allegedly possible herniated disc was causally related to the accident. The record before us discloses that although plaintiff complained of a pain in her right leg and right hip she said nothing to any of the doctors until some 18 months after the accident about having a pain in her back. She lost one day from her work. The doctors themselves did not agree that the diagnosis of a herniated disc in the lumbar region was definitive and unequivocal. One factor which would definitely indicate the existence or nonexistence of a herniated disc was a myelogram. This the plaintiff would not undergo. The evaluation of the expert testimony was properly submitted to the jury by an experienced Trial Judge in a comprehensive charge to which appellant took no exceptions and made no requests. We see no reason to disturb the jury's verdict. While the damages might have been appraised higher by some other jury, we are unable to say as a matter of law that this verdict is inadequate. The amount of damages is in the province of the jury and will not be disturbed unless it is so disproportionate to the injury that it is not within reasonable bounds. Judgment affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.