Opinion
December 29, 1961
Appeal from a judgment entered on the verdict of a jury rendered at a Trial Term, Supreme Court, Franklin County. In this action for personal injury and property damage arising from an intersection collision, the jury returned a verdict for the exact amount of plaintiff's property damage. This verdict necessarily means that the jury found defendant Patricia Ann Planty negligent and plaintiff free from any negligence; and also found that plaintiff had suffered no physical injuries whatever in the accident. Although it may well be that plaintiff did not suffer much in the way of physical consequence of the accident, it seems rather clear that he suffered some adverse physical effect and the verdict of the jury allowing him nothing, although imposing liability against defendants on the issue of liability, seems to us against the weight of evidence. At the scene of the accident when a police officer asked if anyone was injured plaintiff stated he had a pain in his hip. A physician who treated him immediately after the accident testified he had an "acute sacroiliac strain", and although this physician after seeing the medical record of plaintiff's prior back history said the sacroiliac condition was probably an aggravation of an earlier injury, still the condition observed was associated with the accident by this medical witness. We do not read the testimony of defendants' medical witness as negativing plaintiff's medical proof of the condition immediately following the accident. Although the statement by defendants' medical examiner that plaintiff "apparently sustained a contusion of his left hip in the accident" is not necessarily an admission by this physician that plaintiff did sustain a contusion, since the examination was a considerable time after the accident, in September, 1959, still the opinion of the defendants' examining physician does not negative the specific observations of the plaintiff's physician that there was an acute strain. Plaintiff's physician testified to observing immediately after the accident spasm "of the right paraspinal muscle mass, the twelve to L-4 * * * down to the next to the last bone in the lower back" and that the left sacroiliac joint "is tender". If it be assumed all this was an aggravation of a pre-existing condition, plaintiff would be entitled to damages for the actual injury so far as it went, even if the result was an aggravation; and since the liability was established by the jury, its decision to allow no recovery for the injury was against the weight of evidence. In this situation the plaintiff's motion for a directed verdict becomes academic. He would not be entitled to a directed verdict on negligence; but in view of the result establishing negligence, he needed no direction; and he would certainly not be entitled to a direction that the jury find a specific amount for his injury. Order and judgment so far as appealed from reversed on the law and the facts and a new trial ordered, with costs to abide the event. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.