Opinion
November 22, 1967
Appeals from a judgment and order entered in favor of the plaintiffs upon a verdict against defendants Edward Hunting and Peter Hunting in Action No. 1, and from a judgment of no cause of action in favor of the defendant Frederick M. Grober in Action No. 2. On February 12, 1964 plaintiff Robert Roark allegedly fell on an icy patch on the sidewalk abutting a building owned by the defendants Hunting, and occupied by the defendant Grober, as a tenant. Robert, age 18 years at the time of the accident, was accompanied by his sister Mary, and fractured his left ankle as a result of the fall. The jury returned a verdict against the defendants Hunting in favor of Robert Roark in the sum of $19,000, and a verdict in the derivative action in favor of his mother Winifred Roark in the sum of $4,000, and a verdict of no cause of action in favor of the defendant Grober. Prior to the accident the defendants Hunting had purchased the building and, at the time of purchase a sign hung on a pipe attached to the building by a center shaft, which sign was for the benefit of defendant Grober, as tenant. The pipe and shaft had been installed by a prior owner of the building. Plaintiffs claim that the defendants were negligent by reason of their failure to maintain the sidewalk in a safe condition by permitting water to flow from the building, or a sign connected to the building, and to collect and freeze on a broken portion of the sidewalk. The appellants contend that the contradictions in the testimony of Robert Roark and his sister Mary from written statements taken 15 days after the accident, and the weight of the evidence as a whole was insufficient to hold the landlord and exonerate the tenant. One of the appellants testified that the maintenance of the exterior of the building was under his control, and that he had made repairs to the sidewalk. Although there was conflicting testimony, the jury apparently elected to accept the testimony of Robert Roark and his sister as given on the trial, and other evidence that established negligence on the part of the appellants. The credibility of the witnesses and other matters were strictly within the province of the jury. The appellants' objection to remarks of counsel for defendant Grober in his summation and to the charge of the trial court including the requests to charge insofar as the appellants took exception thereto are not sustainable as errors requiring reversal. The appellants further contend that the verdicts of the jury were excessive. The plaintiff Robert Roark had suffered a severe fracture dislocation of the ankle joint requiring an open reduction and the insertion of a metal screw which was later removed. The medical testimony is to the effect that the injury is permanent, resulting in a 10% loss of use, and two years after the accident, pain and swelling continued in the ankle, and that pain could be expected to continue. The medical damages amounted to the sum of $1,049.25 with no proof in the derivative action of any loss of society or services. In the opinion of the court, the verdict in favor of Winifred Roark in the derivative action is excessive to the extent of $2,500, and should be reduced to the sum of $1,500. The verdict in favor of Robert Roark is not excessive and should be affirmed, and the verdict of no cause of action in favor of defendant Grober should be affirmed. In Action No. 1 order and judgment in favor of plaintiff Robert Roark affirmed, with costs. Judgment in favor of Winifred Roark reversed, on the law and the facts, with costs to defendants, and a new trial, limited to the issue of damages, ordered unless said plaintiff within 20 days after service of the order to be entered hereon stipulates to reduce the verdict in her favor to $1,500, in which event the judgment, as so modified, is affirmed, without costs. In Action No. 2, judgment affirmed, with costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.