Opinion
No. 4905.
Argued February 8, 1961.
Decided March 7, 1961.
1. Jury verdicts for the plaintiff wife in the amount of $18,000 for "whiplash" neck injuries sustained in a rear-end motor vehicle collision and for her husband for consequential damages in the amount of $4,800 could not be held excessive as a matter of law where the medical testimony was not transferred as part of the record, and the evidence as transferred established that the plaintiff as a result of the accident has suffered severe headaches and been required to use an orthopedic neck traction support and perform prescribed exercises and has a permanent partial disability.
2. The Supreme Court could not ascertain whether the phrase "whiplash injuries" caused the jury to fall into plain error in assessing damages or whether the verdict was excessive where the medical testimony was not a part of the record.
ACTIONS OF CASE, to recover damages for personal injuries to Marilyn F. Pike, hereafter called plaintiff, and consequential damages for her husband resulting from a motor vehicle collision in Dover, New Hampshire, on April 17, 1954. Trial by jury, with a view, resulting in a verdict of $18,000 for the plaintiff and a verdict of $4,800 for her husband for consequential damages. The defendant moved to set aside the verdicts as against the law and the evidence and because "the jury fell into plain error in interpreting the applicable legal doctrines relative to liability and damages." This motion was denied subject to the defendant's exception which was reserved and transferred by Leahy, C. J.
There is no substantial conflict in the evidence and the following summary of the facts is taken from the plaintiff's brief:
"Marilyn Pike was operating an automobile owned by her husband, the plaintiff Roland M. Pike, in a Southwesterly direction on Route 16A in Dover, New Hampshire on April 17, 1954 at about 1:30 P. M. The weather was rainy, although the defendant stated that visibility was good. Mrs. Pike stopped at a legally erected stop sign governing the intersection of Routes 16 and 16A. The defendant stopped his automobile behind that of Mrs. Pike. The stop sign was set back somewhat from the actual intersection and as Mrs. Pike moved forward, with the defendant following, she felt it necessary after moving two or three car-lengths to stop a second time before entering Route 16 to look for traffic. The defendant, also looking to his right for traffic on Route 16, failed to notice that Mrs. Pike had stopped and collided with the rear end of her vehicle. As a result of the collision, Mrs. Pike suffered a whiplash injury to her neck. The doctor prescribed a collar for her neck and orthopedic exercises involving the use of a special harness. An end result was reached in the medical treatment. The headaches she suffered became somewhat less severe and less frequent over the years although she still claims pain and periodic incapacity as a result of the injuries she sustained in this accident. The medical testimony was not made a part of the record transferred to this court but it may be seen from the evidence transferred that she will be permanently partially disabled."
Fisher, Parsons Moran (Mr. Moran orally), for the plaintiffs.
Devine, Millimet McDonough (Mr. Shane Devine orally), for the defendant.
The principal issue before us is whether the verdict for the plaintiff was excessive. The defendant maintains that the award is "shocking to the conscience" and "manifestly exorbitant." The evidence discloses that the plaintiff, age thirty-three, used neck traction for six months, did orthopedic exercises and complained of severe headaches occurring every two or three weeks. The plaintiff was not employed at the time of the accident but beginning in April 1959 she commenced regular employment and during a period of eleven months lost only a few days' employment because of headaches. Her medical and hospital bills totalled $146. The plaintiff in support of the verdict emphasizes the fact that the injuries sustained by her were both painful and of a permanent nature, that this condition existed at the time of trial in 1960 and that she was still using the stretching device prescribed by her doctor.
It may be that the misleading, much-abused and emotionally charged phrase "whiplash injuries" was a factor in the verdict. Thomson, The Counterfeit Phrase of Neck Lash Injuries, 2 Orthopedics 125 (1960); Threadgill, Whiplash Injury — End-Results in 88 Cases, XXIX Medical Annals of the District of Columbia 266 (1960). The "expressions `whiplash' and `necklash' are not medical terms and have been much abused." 3 Schwartz, Trial of Automobile Accident Cases, s. 1700 (1960). See also, Jackson and Ruth, Neck Injuries, 1 Trauma 7 (Feb. 1960); Schwartz, s. 1725, supra; Medicolegal Aspects of Head, Neck and Back Injuries (Edited by Stumpf and Horwitz) s. 149 (1955). However, it is impossible on the record before us to ascertain whether the phrase "whiplash injuries" caused the jury to fall into plain error in assessing damages or whether the verdicts were excessive for some other reason since the medical testimony is not part of the record in this appeal. Obviously the amount of damages recoverable in a personal injury suit depends in a large measure upon the medical testimony, and it would be difficult as well as unrealistic for this court to attempt to review the damages without such testimony.
It is argued that this is a classic challenge for this court to indicate that verdicts in personal injury suits will be scrutinized and not left entirely to the Trial Court's determination. But, as we have already indicated, this court in this case does not have the necessary tools to meet the challenge.
The power of this court to set aside a verdict because it is excessive or because it is inadequate is not disputed. Demers v. Becker, 91 N.H. 519; Sylvain v. Peterman, 89 N.H. 249; MacDonald v. Appleyard, 94 N.H. 362, 363; Gomes v. Roy, 99 N.H. 233. While in the usual case the action of the Trial Court has been upheld there are instances where the action of the Trial Court has not been allowed to stand. Gomes v. Roy, supra; Smith v. Turner, 92 N.H. 49. Upon the record here we cannot rule as a matter of law that the verdicts were excessive. Anno. 16 A.L.R. (2d) s. 117; Note, Grounds for a New Trial in New England — Inadequate or Excessive Damages, 39 B. U. L. Rev. 393, 414 (1959). Accordingly the order is
Judgment on the verdicts.
All concurred.