Freund, Donges and Proctor. The opinion of the court was delivered by Proctor, J.s.c.
[14 NJSuper Page 11] These appeals are from two actions arising out of a collision at the intersection of Market Street and Broadway in Gloucester City, Camden County, between the automobiles owned and operated by plaintiff, Marion E.
Justice, and defendant, Frank Weise, respectively. In the first action, Mrs. Justice sued Weise for damages to her automobile and for personal injuries. In the same action, plaintiffs, Thomson and Orcutt, occupants of the Justice automobile, sued Weise for damages for personal injuries. Weise counterclaimed against Justice for the damages to his automobile. In the second action, plaintiff, Anna Parker, an occupant in the Weise automobile, sued Weise and Justice, jointly and severally, for damages for her injuries.
In the Justice, et als. , action, it was agreed in the pretrial order that the following could be testified to without objection: As to Marion Justice, automobile damage $760.97, medical expenses $8; as to Thomson, medical expenses $60.50; as to Orcutt, medical expenses $24.
The actions were consolidated and tried together. Testimony as to the respective elements of damage mentioned in the pretrial order was introduced without objection and without contradiction. There was also uncontroverted testimony that Thomson incurred additional medical expenses, subsequent to the pretrial order, making her total medical expenses $115.50. Further, there was undisputed testimony that Thomson suffered painful injuries which continued up to the time of trial, a period of 17 months, and that Orcutt suffered pain which persisted for four weeks after the accident. The damage to the Justice automobile was stipulated at $760.97. The court in charging the jury stated that these elements of damage should be included in their verdict in the event they found in favor of the above-named plaintiffs.
The jury returned verdicts against Weise in the following amounts: $8 for Justice; $115.50 for Thomson; $24 for Orcutt. A verdict of "no cause for action" was returned on Weise's counterclaim. In the companion case, the jury returned a verdict in favor of Mrs. Parker for $5,000 against Weise and "no cause for action" as to the co-defendant Justice.
The plaintiffs, Justice, Thomson and Orcutt, moved for a new trial as to damages only, or, in the alternative, as to all
issues. Mrs. Parker moved for a new trial, limited to damages as to Weise, and for a new trial as to Justice. All motions were denied, and it is from these rulings of the trial judge that the plaintiffs in the two actions appeal.
The plaintiffs, Justice, Thomson and Orcutt, contend that the trial court erred in denying a new trial, asserting that the damages awarded by the jury were grossly inadequate and contrary to the stipulated property damage, the undisputed testimony and the charge of the court.
It is apparent that the damages awarded by the jury were totally inadequate. In each instance, the verdict was for sums equal only to the admitted medical expenses of the plaintiffs. Contrary to the charge of the court, no allowance was made for pain and suffering nor for the stipulated damage to the Justice automobile. Damages awarded must be consonant with the testimony and the law as charged by the court. Gilbert v. Lahn , 24 N.J. Misc. 336, 339 (Sup. Ct. 1946); Rubel v. Weiss , 7 N.J. Misc. 447 (Sup. Ct. 1929). See also Palestroni v. Jacobs , 10 N.J. Super. 266, 271 (App. Div. 1950).
We think that the verdicts were palpably products of a mistake on the part of the jury and must be set aside.
The next inquiry is whether a new trial should be limited to damages or should be on all the issues involved. The evidence was in sharp conflict as to where the responsibility lay for the collision. Upon our review of the record, we are unable to say that it clearly appears that the jury "has settled the question of liability fairly and upon sufficient evidence, so that, disassociated from other questions, it ought to stand; but that there has been such error in the ...