Opinion
December 7, 1961
Appeal from a judgment entered on a jury verdict in favor of respondent in the amount of $5,646 and an order of the Supreme Court, Albany County, denying appellant's motion for a new trial. Respondent testified that on September 30, 1954, while picketing in front of appellant's store on South Pearl Street in the City of Albany, he was injured when a neon sign exploded causing glass fragments to strike him in the face and eyes. In his efforts to evade the falling glass he struck his head on a pole. He was taken to Memorial Hospital, given emergency treatment and discharged. Respondent further testified, that after he arrived home his eyes started to irritate him to such an extent that the next day he went to a Dr. Padula's office. The doctor was unavailable so respondent was sent to the Albany Hospital where they treated his eyes and changed the dressing on his forehead. The following day he returned to Dr. Padula who removed dirt and pieces of glass from his eyes and gave him drops to relieve the irritation. He visited Dr. Padula on four to six other occasions within the following three weeks. In December of 1955 respondent entered the Air Force. While in the Air Force he saw service physicians concerning the continuing irritation in his eyes and received medication for relief thereof. After he had been in the Air Force a year or so he developed a lump on his right eye for which he underwent corrective surgery prior to his discharge in 1959. He testified that since his discharge his eyes have continued to irritate him but that he had not seen a physician between the date of his discharge and just prior to the trial in January, 1961 when Dr. Henry Dubins examined him for the purpose of testifying. Respondent's account of the explosion of the sign, showering him with glass, when he was in the vicinity of the curb some distance from the sign and his backing into a pole near the curb is met by undisputed testimony from an expert that at the time of his inspection, shortly after the incident, there was no glass missing from the sign, and that there was only a slight crack in one of the letters that had allowed the neon gas to escape causing that letter and three others to remain unlit. This witness testified that neon gas is inert, and cannot explode. That the only pressure is inward from the outside and could result only in an impotent collapse of the tubing and not an explosion. On this record we find this verdict for plaintiff against the weight of the credible evidence. Dr. Dubins testified that he examined respondent just prior to trial, and that respondent was suffering from chronic conjunctivitis. In reply to a hypothetical question based on respondent's account of his previous medical history Dr. Dubins testified that the accident was a competent producing cause of the conjunctivitis. The Trial Judge, however, later struck out this testimony, presumably, on the grounds that it was based solely by respondent's account of his previous medical history which had not been corroborated. The court, however, permitted the remainder of Dr. Dubins' testimony including testimony that the conjunctivitis was chronic to remain on the record. Neither Dr. Padula or his records nor any official record of respondent's treatment while in the Air Force were produced by respondent at the trial. Additional mischief in this case, therefore, is that the record does not furnish a basis on which this court can determine the correct amount of the damages with reasonable certainty. There is no satisfactory medical testimony to connect the accident with the growth which developed during respondent's service in the Air Force and the resultant operation to remove it, which, of course, would constitute a substantial part of the damages. Without such testimony the jury should not have been allowed to consider this aspect of respondent's case in assessing damages. They would have to indulge in sheer speculation. Order and judgment reversed, upon the law and the facts, and a new trial ordered with costs to abide the event. Bergan, P.J., Coon and Reynolds, JJ., concur; Gibson and Taylor, JJ., concur in the result.