Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[37 NJSuper Page 299] 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 richocheted 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 acromioclavicular 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 acromioclavicular 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. He rankle is sore in bad weather.
Both Dr. Felder and Dr. Kopell testified that the separation of the acromioclavicular 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 at the time, and that these symptoms could last for
months. Dr. Kopell testified that such injury to the neck could manifest itself at once or as long as one to two years after.
We take note of the fact that following the return of the verdict in the first trial defendant did not move for a new trial under R.R. 4:61-1 et seq. His contention that the inadequacy of the damages found by the jury tainted its finding as to his negligence was raised for the first time on this appeal.
In ruling on the motion for a new trial, the trial judge found that there was no element of compromise in the verdict. He stated he had had the opportunity to observe Mrs. Ruth during the entire trial, and had seen her condition and pain. In setting aside the verdict as to Mrs. Ruth and granting a new trial as to damages only, he said:
"Frankly, I was shocked at the smallness of the verdict. I think $2,000 was too little. I feel that the court has some conscience in this thing. I saw Mrs. Ruth just as well as the jury did. True, the jury has the primary duty of determining the extent of the damages, but the court, under all the rules of court, cannot sit idly by and see them make a mistake as to the damages without acting."
We are aware of the responsibility lodged in a jury to resolve the factual conflict which is invariably present in a negligence case. However, we are also sensitive to the emphasis placed by our Supreme Court in Hartpence v. Grouleff , 15 N.J. 545, 549 (1954), upon the superior position enjoyed by the trial judge over that of the appellate court in deciding "whether justice has been done under the particular circumstances and the weight of the credible evidence," and this because "He sees and hears the witnesses, observes their demeanor and reactions, none of which has life in the record on appeal. He is in a position to know and equate all the factors * * *." We are enjoined not to disturb the action of the trial court, "unless it clearly and unequivocally appears there was a manifest denial of justice under the law." The Appellate Division may not
substitute its judgment for that of the trial judge merely because it evaluates the evidence in a light that would justify the jury verdict. Gallichio v. Gumina , 35 N.J. Super. 442, 446-447 (App. Div. 1955)
Accordingly, the determination to grant Mrs. Ruth a new trial as to damages only should not be set aside. There was no contradiction of her condition of debility at the time of the trial. We cannot say there was no rational basis for the conclusion of the trial judge, in the light of his observation of the witnesses, that $2,000 was an inadequate recovery of her damages. In short, it does not clearly and unequivocally appear that there was a manifest denial of justice here.
As for defendant's alternative contention that the amount awarded Mrs. Ruth by the jury should be regarded as having been induced by a compromise as to liability, we find ourselves in complete accord with the trial judge who stated that there was no question in his mind that the verdict was not a compromise. He said that "The jury found, as they could not help but find, that the defendant was negligent." A reading of the record shows that the evidence concerning negligence was so overwhelmingly against defendant that it cannot fairly be considered that the jury compromised the issue of liability in its verdict. There was no conflict in this case as to liability; as the trial court observed, defendant's liability was practically admitted throughout the case. Esposito v. Lazar , 2 N.J. 257 (1949), on which defendant relies, is therefore not in point because, as Justice Ackerson there observed, the question of defendant's liability was sharply contested and at the close of the trial was extremely in doubt. Cf. Capone v. Norton , 8 N.J. 54, 63-64 (1951). The cases are clear that the issue of liability must be in real conflict before the court will find compromise and avoid the entire verdict. Hendrikson v. Koppers Co., Inc. , 11 N.J. 600 (1953). There being no real question as to liability, the issues of liability and damages are separable and the new trial was properly limited to damages only. Cf. Capone v. Norton, supra; Rempfer v. Deerfield Packing
We turn to defendant's argument that the cross-examination of his medical experts was improper. At the retrial defendant presented Doctors Solk and Reilly. We do not have their direct testimony; the appendix reproduces only the cross-examination to which error is laid.
Dr. Solk was cross-examined on his opinion as to when a whiplash injury would manifest itself by symptoms. After stating that he had treated many such injuries in the past 35 years, he said he could not recall a case where the symptoms became evident a month after the accident, although that was a possibility "if the whiplashing or the injury to the spinal column caused an inflammatory process, an inflammation which would result in an arthritis or osteoarthritis," in which case he believed it would more likely be six months before the injury would manifest itself and that the particular condition would be diagnostic upon X-ray visualization. In his experience the longest period of time between a whiplash injury and the onset of pains in the arm was a few hours. Counsel for plaintiffs then asked Dr. Solk if he recognized Key and Conwell's Fractures, Dislocations and Sprains , published in 1946. The witness conceded the medical treatise was a reputable authority in the field. He was then asked to read what the authors said regarding injuries to the cervical spine. ...