Coll v. Sherry, A--63

• Citation: 29 N.J. 166,148 A.2d 481
• Decision Date: 16 February 1959
• Docket Number: No. A--63,A--63
• Parties: Silas COLL, Plaintiff-Appellant, v. Arthur SHERRY, Defendant-Respondent.
• Court: United States State Supreme Court (New Jersey)

Page 166

29 N.J. 166

148 A.2d 481

Silas COLL, Plaintiff-Appellant, v. Arthur SHERRY, Defendant-Respondent.

No. A--63.

Supreme Court of New Jersey.

Argued Jan. 5, 1959.

Decided Feb. 16, 1959.

Harry Chashin, Paterson, argued the cause for appellant (Marcus & Levy, Paterson, attorneys).

George F. Losche, Hackensack, argued the cause for respondent (Losche & Losche, Hackensack, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

A verdict of $1,500 was returned in favor of the plaintiff, Silas Coll, in this personal injury and property damage suit arising out of an automobile collision. The trial judge denied his motion for a new trial and he thereupon appealed to the Appellate Division, alleging that the damages awarded were inadequate and that several trial errors had adversely affected the amount of his recovery. The Appellate Division affirmed the judgment, and we granted plaintiff's petition for certification.

The accident occurred at about 3:00 P.M. on January 15, 1955. Plaintiff, the proprietor of a retail chicken and egg business, was engaged in making deliveries to the various customers on that day's route. He was driving a sedan delivery truck loaded with creates of eggs. Defendant, Arthur Sherry, was operating his motor vehicle immediately behind the plaintiff's.

Sherry testified that he and Coll had stopped for a red light at the entrance to the Lincoln Avenue Bridge, which spans the Passaic River in Paterson. It was either snowing at the time or had recently been snowing. The roadway was wet and had some snow on it.

After the stop light had changed to green, both drivers started across the bridge. They had gone about half way when Sherry momentarily glanced at the river to see whether there were any ducks on it. Upon returning his eyes to the road, he saw Coll's truck standing motionless in front of him. Sherry applied his brakes and tried to turn out to the left, but his vehicle skidded and struck the rear of plaintiff's truck with a moderately severe impact. Sherry stated he had been proceeding at approximately 10 to 15 miles per hour when he looked at the river and that plaintiff's truck was then about 20 feet in front of him.

Coll testified that he had stopped because of traffic congestion and that the force of the collision had pushed his truck forward into the rear of the car in front of him. He stated the driver of that automobile had alighted and ascertained that there was no serious damage to his car, whereupon he drove away without giving any identification. The rear door and bumper of Coll's truck were dented, and he testified that the front bumper, a front fender and his grill were also damaged.

With respect to personal injuries, plaintiff asserted the force of the two collisions had snapped his neck back and forth and thrown him against the lefthand truck door, which had sprung open, causing him to fall to the roadway. Defendant disputed this and said that after the impact Coll had climbed out of his truck.

Plaintiff did not obtain medical care until two days after the accident. His original complaints were of stiffness in the back of the neck and pain in the left shoulder. Some months thereafter, he also complained of diminished sensation in the little finger and adjacent lower half of the fourth finger on his left hand. As of the time of trial, two years and ten months later, his persisting symptoms were described as numbness of the little and fourth fingers of the left hand; neck pains upon extremes of motion; pains in the left shoulder when that arm was raised; and headaches at the back of the neck attendant upon heavy lifting. In the interim, for approximately six months, plaintiff had worn a leather collar, during his leisure moments, to support his neck. He did not lose any time from work as a result of the accident, and he said his condition had improved considerably.

Plaintiff presented four medical experts, and defendant produced two. The orthopedic evaluation of Coll's shoulder injury was calcific bursitis of the supraspinatus tendon, permanent in nature and traumatic in origin. Coll's orthopedist stated that this condition, apparent from X-rays, was causally related to the blow plaintiff's shoulder had sustained in the accident and that it was due to metabolic changes occasioned thereby. One of defendant's physicians diagnosed the shoulder injury as a myositic nodule, described as either hardened scar tissue or an undissolved blood clot within the muscle, but upon being confronted with the hitherto unseen X-rays, conceded that they showed an opacity above the supraspinatus tendon, usually connoting calcification. Defendant's other medical witness stated that upon examination he had found tenderness over the upper border of the left trapezius muscle, which lies in the shoulder region, but he did not give any diagnosis resulting from his findings.

With respect to the neck injury, the physician who had treated plaintiff originally described it as a whiplash sprain of the cervical portion of the spine. The examining orthopedist who testified for plaintiff confirmed the existence of a whiplash syndrome and said there had been a narrowing of the interspaces, attributable to trauma, between the fourth and fifth cervical vertebrae and the seventh and eighth cervical vertebrae. He felt that this condition had affected the nerve structure. The radiologist produced by plaintiff testified to the traumatic nature of the vertebral changes as they were reflected by X-rays. He pointed out the existence of 'spurring' on the carvical vertebral bodies and said that the foraminal spaces or holes, through which the nerves issue from the spine, had diminished considerably in size, particularly on the left side. The plaintiff's neurosurgeon, Dr. Jacobson, said he felt that plaintiff had sustained an injury to the disc between the fourth and fifth cervical vertebrae but that, in his opinion, the principal source of plaintiff's continuing debility was a herniation of the disc between the seventh cervical and first thoracic vertebrae, revealed by Coll's medical history, his physical examination and the unusual narrowing of the interspace there as shown on X-rays. He attributed the numbness in plaintiff's left hand to the pressure of a permanent extrusion of the inner body of this disc against a nerve. Defendant's physicians said simply that Coll was suffering from the residual effects of a strain of the neck and had a cervical whiplash syndrome. Dr. Effron stated that narrowing of the interspaces naturally occurs as a result of normal 'wear and tear,' that objective tests had not revealed any loss of sensation in plaintiff's left hand, and that some of his continuing complaints of pain were probably 'emotional' and not somatic in origin.

Plaintiff first maintains that the amount of the verdict was clearly inadequate and against the weight of the evidence. He points out that the bill for repairs to his truck was $194, the treating physician's bill $125, and the charge for X-rays $80. When these sums are deducted from the total recovery, they leave $1,100 attributable to personal injuries and the concomitant pain and suffering, past, present and projected.

The function of an appellate tribunal in reviewing the adequacy of a verdict was concisely set forth in Wytupeck v. City of Camden, 25 N.J. 450, 466, 136 A.2d 887, 896 (1957), where we said:

'The appellate tribunal cannot invade the constitutional office of the jury; it may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury; there may be judicial intervention only if the verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality. Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (1951).'

Here, defendant's expert medical witnesses conceded the existence of a whiplash syndrome but minimized its effects, pointing out that Coll's condition had measurably improved since the date of the accident and giving as their opinion that his prognosis was good. They denied that the alleged narrowing of the carvical interspaces was particularly significant or indicative of traumatic injury and refuted the existence of any verifiable numbness in the left hand. Although all of the doctors agreed there was some injury to the left shoulder, the physicians appearing for defendant did not regard it as seriously debilitating. Their testimony, taken together with the facts that Coll had not lost one day from the work in which he was required to lift 60-pound crates, that the impact between plaintiff's and defendant's vehicles was only moderately severe, that no one could corroborate the collision between Coll's truck and the automobile in front of him, that Coll had allegedly said after the collision that he was 'all right,' and that Sherry denied that Coll had fallen from his truck, may have induced the jury to conclude that plaintiff was overemphasizing the extent of his suffering and that some of the injuries were not attributable to the accident.

The trial judge is customarily in a better position than we to decide whether justice was done under the particular circumstances present in the case and in light of the weight of the credible evidence. After seeing and hearing the witnesses and observing their demeanor and reactions upon the stand, he refused to award a new trial on the issue of damages. Where new trials have been granted by trial judges, we have concluded that we will not reverse 'unless it is clearly manifest that the action of the trial court was without basis in law or fact, or both, with the result that there was a denial of justice under the law.' Hartpence v. Grouleff, 15 N.J. 545, 548, 105 A.2d 514, 516 (1954). We experience a similar reluctance to disturb an order refusing a new trial where the error...