Opinion
February 20, 1962
Appeals from judgments of the Supreme Court entered in Clinton County in negligence actions arising out of an automobile accident, appellant's sole contention being that the verdict of $7,000 in the case of plaintiff Jeanette Colby and that of $2,000 in her husband's derivative action were excessive and not supported by the evidence. The only medical witness called by Mrs. Colby was the orthopedic surgeon whom she first consulted some 40 days after the accident and who saw her on four occasions, the last being some five months after the accident and about seven months before the trial. He diagnosed "sprains of the sacroiliac regions on both sides, and strain of the cervical region" and found "very mild permanency due to the scar tissue replacement of overstretched or torn ligamentous fibers in the sacroiliac areas and to a lesser degree in the cervical region * * * That scar tissue does become more pliable and becomes less of an irritating factor as time goes on, but those ligaments that were damaged have a lesser tensile resistance to further injury than before they were first injured." Testifying approximately one year after the accident, Mrs. Colby said that she still had back pain, could not stand or sit for "any length of time" and could not do the family washing or shopping or anything requiring "a lot of work" because she would "suffer for hours later". Her medical witness said that when he last examined her, some five months after the accident, "she stated that for two to three weeks she had been symptom free and had had no pain"; but when the doctor was questioned as to the subsequent pain and disability to which she had testified, he said that "the persistence of the symptoms are due to the permanent changes as a result of the changes to the fibers and these ligaments." Another trier of the facts might well have assessed plaintiffs' damages in considerably lower amounts; and, indeed, the Trial Justice in denying defendant's motions to set aside, observed that the verdicts were "in excess of anything that I would myself render sitting as a juror". Nevertheless, the essential issue was a factual one for the jury's determination — that as to the existence of a condition of such severity as to cause the prolonged pain and disability to which Mrs. Colby testified and which her treating physician found in some respects permanent. Basically, the jury's verdicts as rendered had to rest on a finding of Mrs. Colby's credibility and, secondarily, on the credibility of the medical evidence. That the doctor's opinion gave credence to her subjective complaints to him and accepted her testimony as to pain and disability subsequent to his last examination went to the weight, and not, of course, to the legal sufficiency of his conclusion, which remained for the jury's evaluation; as did the inferences, if any, to be drawn from Mrs. Colby's failure to consult the orthopedist earlier or to continue medical treatment or to call the physicians who saw her on the day of the accident and during her subsequent confinement. The testimony was not inherently improbable. There is no indication of any prejudice, bias or other improper influence. It cannot fairly be said that the verdicts were so shocking as to warrant our interference with them and our reversal of the trial court's considered determination. Judgments unanimously affirmed, with costs to respondents. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.