Cunningham v. Maxwell
| Decision Date | 31 July 1958 |
| Citation | 176 N.Y.S.2d 720,6 A.D.2d 366 |
| Parties | Christopher J. CUNNINGHAM and Margaretha Cunningham, Plaintiffs-Respondents, v. Edward Wayne MAXWELL and Ready-Mix and Supply Corp., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
William F. Conway and Carroll J. Mealey, DeGraff, Foy, Conway & Holt-Harris, Albany, for defendants-appellants.
William J. Murphy and J. Joseph Murphy, Albany, for plaintiffs-respondents.
Before BERGAN, J. P., and GIBSON, HERLIHY and REYNOLDS, JJ.
The plaintiff was a passenger in an automobile which was involved in a collision with the defendants on the evening of February 16, 1955 at 9:30 P.M., as the result of which he received injuries and was awarded the verdict as set forth above. On the appeal no question is raised as to liability.
The plaintiff and two physicians testified to his physical conditon at the trial. The defendants offered no testimony.
The accident happened on February 16, 1955 and was tried before the court, Hamm, J., and the jury in Albany County on the 5th of December, 1957.
Plaintiff testified that immediately following the accident he felt 'very very painful in my right leg and my right hip and my left shoulder and my neck and the bottom part of my back'. The doctor saw him at the scene of the accident and two days thereafter he was attended by Dr. Bruce, one of the witnesses at the trial. He further testified that his right leg, right hip and the small of his back became progressively worse and that in June of 1955, while walking on North Pearl Street, he fell, landing on his right knee. He returned to Dr. Bruce who in turn recommended him to Dr. William P. Howard for X rays; that he continued under his care until December, 1955, seeing the doctor about nine times.
He further testified that he had difficulty in sleeping and that at the time of the trial he still had pain.
Dr. Darwin A. Bruce testified that he first saw the plaintiff on the 18th of February, 1955; that he made a diagnosis of a bruise of the left shoulder and neck muscles and sprain of the right lumbar region; that he gave him some pills at that time. He next saw him on June 20th when his complaint was pain around the hip and into his groin on the right side and he was referred to Dr. Howard. The doctor was asked a hypothetical question and without objection the doctor testified that the injuries sustained in the automobile accident were a competent producing cause of the injuries complained of by the plaintiff.
Dr. William P. Howard testified on behalf of the plaintiff, giving a detailed statement of the nature of the examination made by him, the various tests which were performed and he testified without objection that his diagnosis was that plaintiff 'had a strain of his lumbosacral joint and that he had evidence of disturbance of his first lumbar root on the right side, which gave rise to the neuralgia, which took in the region of his iliohypogastric, ilioinguinal and the anterior crural or genitofemoral nerve on the right side.'
The doctor further testified as to the manner and method of an injection to the first lumbar root to stop the pain. Plaintiff testified 'It (the pain) gradually tapered off to the point where it didn't hurt enough to go back; it was a toss-up which hurt worse, the shot or the pain in the leg.'
The doctor was asked a hypothetical question without objection as to whether the automobile accident was a competent producing cause of the injuries testified to and the doctor answered: 'My opinion is that the accident described could constitute a competent and...
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