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Spinning v. Hudson & Manhattan Railroad Co.

January 16, 1951

CLAIRE K. SPINNING, PLAINTIFF-RESPONDENT,
v.
HUDSON & MANHATTAN RAILROAD COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, Jr., J.A.D.

Brennan

[11 NJSuper Page 334] Defendant appeals from a judgment in the amount of $4,500 entered in Hudson County Court in plaintiff's favor upon a jury verdict originally for $6,500 but reduced, and as reduced accepted by plaintiff, when the trial court, on defendant's motion for a new trial sought on all issues on the grounds the verdict was against the weight of the evidence and excessive, ordered a new trial

as to damages only unless plaintiff accepted the reduced amount.

The single ground urged by defendant for reversal of the judgment is that the trial court erred in "failing to instruct the jury that the plaintiff was not entitled to recover for pain and suffering resulting from the osteoarthritic condition that was neither caused nor aggravated by the trauma.'

Plaintiff suffered an injury to the left side of her lower back. The pain persisted from the date of the accident, November 29, 1948, to the time of the trial in May, 1950. It caused her extreme discomfort, particularly after sitting for any length of time, and considerably restricted her activities. On her doctor's advice she wears a special support to give her some measure of relief.

The defendant offered no medical testimony. The only doctor who testified was plaintiff's family physician. He testified he had attended plaintiff long prior to the accident. Her evidence was she had never had back pain before the mishap, and the doctor stated she had never complained to him of such pains on the occasions she consulted him before the accident. She consulted him the night of the accident and was treated for the injury to her lower back. About a month after the accident he advised X-rays and learned at that time from the report of the doctor who took the X-rays that his patient had "early osteoarthritic changes involving the sacroiliac articulations.' In the following April he recommended that she consult an orthopedic specialist because the pain persisted, but no bone involvement was discovered and he concluded that she should "wear a firm corset, because that's all that could be done for her for the time being; that she had a lumbrosacral sprain that would take a number of months for it actually to clear up,' "chronic lumbrosacral sprain.'

He expressed the opinion that, while the injury suffered in the accident did not cause the arthritic condition, and he could not say "accurately' whether the injury aggravated that condition, nevertheless, that the condition was "probably a dormant' one and that the injury to the ligaments caused by

the accident "would tend to aggravate a condition of osteoarthritis. * * * because the joint is abnormal to begin with, and any force or strain that is actually put on would make it that much worse.'

Counsel for the defendant at the close of the charge and in response to a question by the trial judge whether there were any exceptions to the charge, stated:

"The only objection I have to the charge is this, if the Court please: The Court stated that the plaintiff was entitled to be compensated for the injuries sustained by her as well as for the pain that she might suffer in the future. That, I know, is a general rule. In this particular case, I feel that the evidence is such that the jury should be instructed to find as a fact whether or not any pain she has might come from the osteoarthritic condition which is concededly not aggravated by the injury.'

"The Court: I told them to find their verdict from the testimony.'

We do not fully understand from the form of the objection precisely to what part or parts of the charge it was addressed, and have no doubt the trial judge experienced the same difficulty. It plainly does not conform to the requirements of Rule 3:51. J.B. Wolfe, Inc., v. Salkind , 3 N.J. 312 (1949); and see Levenson v. Erxleben , 135 N.J.L. 127 (E. & A. 1946); Tornaquindici v. Bocchicchio , 11 N.J. Super. 179 (App. Div. 1951). Assuming, however, ...


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