Desmarais v. Pinto

• Decision Date: 08 January 1960
• Citation: 147 Conn. 109,157 A.2d 596
• Court: Connecticut Supreme Court
• Parties: Dorothy DESMARAIS v. Andrew A. PINTO et al. Supreme Court of Errors of Connecticut

Page 596

157 A.2d 596

147 Conn. 109

Dorothy DESMARAIS v.Andrew A. PINTO et al.

Supreme Court of Errors of Connecticut.

Jan. 8, 1960.

Henry J. Goldberg, Hartford, with whom were Harry Cooper, Hartford, and, on the brief, Jacob Schwolsky, Hartford, for the appellant(plaintiff).

William P. Aspell, Hartford, with whom was George Muir, Hartford, for the appellees(defendants).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

SHEA, Justice.

The plaintiff brought this action to recover damages for personal injuries alleged to have been sustained in an automobile collision caused by the negligence of the defendants.The defendants admitted liability, and the case was tried on the issue of damages.The jury returned a verdict of $1000, and the plaintiff appealed from the denial of her motion to set aside the verdict as inadequate.

The appeal was taken from the denial of the motion to set aside the verdict rather than from the judgment.It is, therefore, defective in form, but since the defendants did not, within ten days after the appeal was filed, make a motion to dismiss it, they have waived the defect.Van Detti v. Parsons Bros., Inc., 146 Conn. 282, 283, 150 A.2d 200.

On April 26, 1955, the plaintiff was injured when the car she was operating was struck in the rear by a truck.She complained of pain in her neck and back.The pain in her neck subsided after treatment, but she claimed permanent injuries to her lower back.Hospital and medical expenses to the time of trial amounted to $936.69, most of which were due to the care and treatment of her back.In the opinion of one of her doctors, she may have to undergo surgical procedure if the difficulty with her back becomes intolerable.The cost of such an operation would amount to about $1500.The nature and the extent of the plaintiff's injuries were sharply contested.

Our primary concern in reviewing the action of the trial court on a motion to set aside a verdict is to determine whether the court abused its discretion.McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345.Litigants have a constitutional right to have issues of fact determined by the jury.Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352.The credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury.We cannot retry the case.Henry v. Bacon, 143 Conn. 648, 651, 124 A.2d 913.The assessment of damages for the injuries suffered by the plaintiff was peculiarly a matter for the jury, and we should not disturb the ruling of the trial court unless the verdict was manifestly inadequate.Meyer v. Basta, 102 Conn. 144, 147, 128 A. 32.The jury had a right to accept part of the testimony and to disregard the remainder.Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358, 54 A.L.R.2d 655.We decide only whether, on the evidence presented, the jury could fairly reach the conclusion they did.Giamabartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760.

The jury could reasonably find that the plaintiff sustained a minor injury to her neck, that she recovered from that injury before the end of 1955, and that the difficulty, if any, in her lower back was due to a pre-existing condition and not to the accident.The first evidence of muscle spasm in the area she complained of was observed about a year after the collision, and while the plaintiff told her doctors that she had had no previous trouble or pain in this region, her own orthopedist testified that an anomaly in her spine had existed for several years before the accident.The...