McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.
[3 NJSuper Page 133] Defendant appeals from judgments entered in favor of plaintiff Carl Wadell in the sum of $6,500,
and in favor of plaintiff Edgar Dygert in the sum of $500, with costs, on verdicts of a jury in the Law Division of the Essex County Court.
The appellant urges six grounds of appeal: (1) "The trial court erroneously admitted a photograph (Exhibit P-2) in evidence;" (2 and 3) the trial court erroneously admitted evidence of a pre-existing disease, and erroneously charged the jury that it was to consider whether or not there was an aggravation of a pre-existing disease, although not pleaded in the complaint; (4 and 5) that the trial court erroneously charged the jury; and (6) that the verdict was contrary to the weight of the evidence.
Plaintiffs' actions are based upon the allegation that the negligent operation of defendant's motor bus was the proximate cause of a collision between said bus and a truck in which they were riding. Defendant denied the charge of negligence in the operation of its bus, and asserted that the plaintiff Dygert, the driver of the truck in which Wadell was seated, was guilty of negligence producing the collision of the vehicles in question, and that Dygert and Wadell were both guilty of negligence which contributed to the happening of the accident.
It appears that plaintiff Dygert was driving a Wells Fargo covered armored truck in a northerly direction on Broad Street, in Newark, at about 5:20 P.M. on December 6, 1945. At the intersection of Academy Street, which runs westerly from the west side of Broad Street, Dygert made a left turn to proceed into Academy Street, and a collision occurred between the truck and defendant's bus, operated by one John Fetkin, which was being driven in a southerly direction from Raymond Boulevard toward said Academy Street. The truck was overturned at the southwest corner of Broad Street and Academy Street, and both plaintiffs claim injury as a consequence of said collision.
Appellants' first ground of appeal has to do with the admission of a photograph showing the plaintiff, Wadell, lying on a stretcher. Dygert testified that after the accident, Wadell was on top of him and was unconscious; that he was
removed from the truck by Emergency Squad policemen and laid on a stretcher for the ambulance; that his eyes were closed and that he was unconscious when the photograph was taken ten minutes after the accident. The only objection was that it was "immaterial and irrelevant." There was no denial that Wadell was injured; nor was there any denial that he was unconscious after the accident and removed to a hospital. He testified that he had no recollection of anything from the time he was taken out of the truck until he was in the ambulance.
We do not regard it necessary to pass upon the question urged by appellant as to its admissibility. In no event was it harmful to appellant, as it manifested nothing that was not the subject of uncontradicted proof as to Wadell's condition. Cf. State v. Aeschbach , 107 N.J.L. 433 (E. & A. 1931); State v. Fine , 110 Id. 67 (E. & A. 1933).
Points 2 and 3 have to do with the admission of testimony as to the existence and aggravation of a pre-existing disease, because, it is claimed by appellant, it was not pleaded in the complaint as special damages. The complaint alleged that plaintiff was "greatly hurt and wounded and became and was sick, sore, diseased, maimed, lame and disordered, disabled and debilitated," and that "as a result of the injuries sustained as aforesaid, plaintiff was obliged to and did expend divers large sums of money" for medical and surgical attention, etc., in an effort to cure himself of the "aforesaid wounds, injuries and ailments caused as aforesaid." Plaintiff's doctor testified to ailments from the aggravation of an existing Paget's disease. Defendant's witness, a Doctor Kraker, testified that he examined Wadell on December 26, 1945, 20 days after the accident. He further testified in response to a question by appellant's counsel, that Wadell had some X-rays with him that showed evidence of Paget's disease, which is a chronic disease of the bone in middle life, but the accident had no effect on that. If it had, he would have broken some of the bones. They were not broken. On cross-examination he testified that he had been one of appellant's doctors for 25 or 30 years. He was asked: "You examined these plaintiffs
for the purpose of testifying in court if necessary? A. For the purpose of informing the company what I found." He further testified: "Here is a man who was apparently ailing, and if he didn't have this X-ray he would never have known he had Paget's disease. He has a job and he is injured and reports to the company through himself or his attorney and has an examination to find out what happened to him at the time of the accident. The previous history is to ...