Ruth v. Fenchel

Citation117 A.2d 284,37 N.J.Super. 295
Decision Date11 October 1955
Docket NumberNo. A--459,A--459
PartiesJames R. RUTH et al., Plaintiffs-Respondents, v. Irving FENCHEL, Defendant-Appellant. . Appellate Division
CourtNew Jersey Superior Court – Appellate Division

Seymour Margulies, Jersey City, for appellant (Ezra L. Nolan, Jersey City, attorney; Maurice C. Brigadier, Jersey City, of counsel; Seymour Margulies, Jersey City, on the brief).

Eugene T. Sharkey, Bayonne, for respondents (John J. Wygant, Jersey City, attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

On May 30, 1953 there was a collision near the intersection of Route 1 and Broadway in Jersey City between the automobiles respectively owned and operated by plaintiff James R. Ruth and defendant Irving Fenchel. Mrs. Ruth and her infant daughter were passengers in the Ruth car; Mrs. Fenchel and her children were riding in the Fenchel car. The Ruths brought suit, Mrs. Ruth and the infant (by her guardian Ad litem) demanding damages for personal injuries and Ruth seeking recovery for damages to his car and for damages Per quod. Defendant denied negligence and set up the usual defenses of contributory negligence, assumption of risk and joint enterprise. The jury awarded Ruth $1,954, Mrs. Ruth $2,000 and the child $100. Ruth and his wife then moved to set aside the verdict and judgment as to damages only, on the ground that the verdict was inadequate and the result of mistake, partiality, prejudice or passion. The trial court denied the motion as to Ruth, but granted it as to his wife, directing that a new trial be had only as to the damages she had sustained. On the second trial the jury returned a verdict in her favor for $10,000, on which judgment was then entered.

Defendant appeals from the whole of the first judgment, from the order setting aside the verdict in favor of Mrs. Ruth and directing a new trial as to damages only, and from the whole of the second judgment. Defendant contends that (1) the trial court erred in setting aside the first verdict in favor of Mrs. Ruth, since damages was an issue for the jury only and testimony was adduced which, if believed, justified the amount of its award; or, in the alternative, (2) assuming the trial court was correct in setting aside the verdict as to Mrs. Ruth because it was inadequate, the inadequacy was the result of a compromise by the jury on the question of liability, and hence the court should have ordered a new trial on all issues; and (3) the court erred on the retrial in permitting cross-examination of defendant's medical experts by use of medical treatises and other publications which had not been referred to or relied upon by the experts in giving their testimony in chief.

The accident happened before noon; it was raining, the roads were wet, visibility was fair. The Ruth car was proceeding in a westerly direction on Broadway where it approaches an intersection with Route 1. Defendant was driving in a northerly direction on Route 1 and was about to make a right turn into Broadway. There is a center safety aisle on Broadway east of Route 1. It is undisputed that defendant's car, instead of negotiating the turn into Broadway, skidded across Broadway and passed over the safety aisle (defendant says his car passed through an opening in the aisle) and crashed into the left front fender and door of the Ruth car.

Ruth testified that defendant's automobile was travelling at about 50 miles an hour before it went into the skid some 40 feet away from the Ruth car. Fenchel and his wife testified that his speed was not more than 25 or 30 miles an hour. Defendant's contention is that the accident was unavoidable; that he had no control because of the skid. This defense, incidentally, was first raised in the course of the trial; it was mentioned in neither the answer nor the pretrial order. However, plaintiff made no objection to the line of evidence defendant sought to develop as to the accident being unavoidable.

The Ruths testified that Mrs. Ruth was sitting in the rear seat of their car with her child lying near her on the seat; that at the moment of collision she was thrown against the side of the car, her right shoulder taking the force of the impact; that when the car ricocheted off the curb and was hit a second time by the Fenchel car she was thrown to the floor and struck her head against the rear of the front seat. What happened to Mrs. Ruth on this second contact of the cars is claimed to be the foundation for a so-called 'whiplash' injury to her neck. After the accident Mrs. Ruth complained of severe pain in her shoulder, and of a sore neck, back and ankle. She consulted Dr. Felder who had X-rays taken and found that there was a separation of the acromio-clavicular joint, the supporting structure in her right shoulder. He had her carry her right arm in a sling for about three weeks and prescribed heat treatments for the shoulder and neck. In September the neck soreness developed into an increasingly severe pain; she experienced shooting pains in the head, then radiating pain to the shoulder blades, and eventually numbness and tingling in the arms and fingers. Dr. Felder gave her cortisone, but it provided no real relief, so that early in January 1954 he sent her to Dr. Kopell, an orthopedic surgeon, whom he had consulted about the condition from time to time. Kopell had seen Mrs. Ruth in September 1953 and found the separation of the acromio-clavicular joint present. Her complaints then were not primarily those of her shoulder but of her neck and back, and he prescribed a bed board. When he saw her again the following January he found she was suffering from the sequellae of a whiplash injury to the neck and that these sequellae were the cause of her complaints, which were pain and stiffness in the neck, the radiating pains from that area, and numbness and tingling in the hands. He tried injections for a brief period, and then prescribed a cervical spine collar. Mrs. Ruth wore this collar 24 hours a day for a time. The period was gradually reduced; in July 1954 she actually went without the collar. However, the pains soon returned, and she has had to wear the collar eight hours a day, using a soft support for the neck at night.

At the time of the first trial, which was more than 16 months after the accident, Mrs. Ruth was still suffering pain in her neck, shoulders and back, and she had not recovered from her nervousness. During that period she had been in almost continuous pain during her waking hours, and her nights had been disturbed by pain and sleeplessness. From January 1954 on, as noted, her neck required a rigid support during the day and a soft support at night. There were times when her arms and hands were completely numb, and during the entire period she was unable to perform the household duties which she had regularly taken care of prior to the accident, save those requiring very little effort. Even with light household duties, she suffers such pain in her shoulders and back that when she is finished she has to sit down and rest for an hour. If she bends, or walks up the stairs, or stands or sits too long in one position, her back pains her. Her ankle is sore in bad weather.

Both Dr. Felder and Dr. Kopell testified that the separation of the acromio-clavicular joint is a permanent condition, Dr. Kopell stating that the disability is 10% Of total. Both causally relate Mrs. Ruth's present condition to the accident. The prognosis is uncertain.

Defendant produced no evidence that plaintiff Ruth was in any way negligent. As to the defense of unavoidable accident, neither defendant nor his wife offered any explanation as to how the car came to skid across the highway. The record is devoid of any proof of an attempt to examine the highway for grease, oil, or some object that may have diverted the car, or to have the car examined to determine what caused it to change its course.

There was only one real conflict in the testimony relating to the accident itself. In contrast to the testimony for the plaintiffs that Mrs. Ruth and her child were in the back seat of the car, the Fenchels said they were in the front seat, and on rebuttal added that there was a carriage in the back seat. The suggestion which the defense probably sought to leave with the jury was that if Mrs. Ruth were indeed sitting in the front seat she could not have been thrown against the side of the car and then onto the floor, and so did not sustain the injuries she claimed. We need not hazard a guess that the jury gained the same impression from the testimony as we do from the record as to the unsatisfactory quality of defendant's testimony as compared with that for the plaintiffs.

The medical testimony was in conflict on the question of causal relation between the accident and Mrs. Ruth's present condition. Defendant's medical expert failed to find a causal connection. He stated that the so-called whiplash injury should manifest itself within 24 hours, and its duration would be a week or two, or at most six to eight weeks. He claimed to have found no indication of such injury when he examined Mrs. Ruth in mid-October 1953. However, his report at that time was that the ankle and neck injuries had healed but Mrs. Ruth 'still has residuals of the neck and right shoulder injuries.' On cross-examination he claimed that this reference to residual neck injury was a mistake in typing; what was meant was 'back' instead of 'neck.' He also reported, and this was confirmed by him on cross-examination, that the injury to the right shoulder was definitely permanent and that the back injury might subside completely with the passage of time.

Dr. Felder, in contradiction to the testimony of defendant's medical expert, stated that the symptoms of a whiplash injury could appear months after the accident, depending upon the individual, the amount of injury, and the position of the head...

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14 cases
  • Jones v. Bloom
    • United States
    • Supreme Court of Michigan
    • August 30, 1972
    ...Charleston Community Memorial Hospital, Supra, recently recognized the rule that we accept today. The Supreme Court of New Jersey in Ruth v. Fenchel, Supra, also recognized the liberal rule. Court last considered this problem in Anderson v. Jersey Creamery Co., Supra, the states of Californ......
  • Jacober by Jacober v. St. Peter's Medical Center
    • United States
    • United States State Supreme Court (New Jersey)
    • July 8, 1992
    ...to expert witnesses to advance an argument before a jury based on opinions set forth in learned treatises. See Ruth v. Fenchel, 37 N.J.Super. 295, 309, 117 A.2d 284 (App.Div.1955) (criticizing limitations on the learned-treatise doctrine in part because "[t]he side [that] can afford and is ......
  • Band's Refuse Removal, Inc. v. Borough of Fair Lawn
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 27, 1960
    ...do not represent existing law. Ruth v. Fenchel, 21 N.J. 171, 175--176, 121 A.2d 373, 60 A.L.R.2d 71, (1956), affirming 37 N.J.Super. 295, 117 A.2d 284 (App.Div.1955). We are left to deal with the question as a matter of first We have concluded that the action of the trial judge in admitting......
  • McDonald v. Mulvihill
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 1, 1964
    ...p. 281, of 42 N.J., 200 A.2d 116; Ruth v. Fenchel, 21 N.J. 171, 176--179, 121 A.2d 373, 60 A.L.R.2d 71 (1956), affirming 37 N.J.Super. 295, 117 A.2d 284 (App.Div.1955); New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 59 N.J.L. 189, 192, 35 A. 915 (E. & In the case Sub judice it is app......
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1 books & journal articles
  • Use of learned treatises on cross examination: practical considerations.
    • United States
    • Florida Bar Journal Vol. 79 No. 7, July 2005
    • July 1, 2005
    ...used to impeach expert during cross-examination.) The court analyzes the issue as one involving basic fairness. (22) Ruth v. Fenchel, 37 N.J. Super. 295, 117 A. 2d 284 (N.J. Super. A.D. Mike Trentalange is the managing shareholder of Trentalange & Kelley, P.A., Tampa. He graduated with ......

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