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Botta v. Brunner

Decided: October 18, 1956.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


Plaintiff was an invitee passenger in an automobile being driven by the defendant Brunner when it collided August 2, 1953, at the intersection of Laurie Road and Matthew Court, Roxbury Township, with a car operated by the defendant Frieband. Trial of this action in the Law Division for the recovery of damages for plaintiff's resulting injuries culminated in a jury verdict for the plaintiff against the defendant Brunner for $5,500 and of no cause of action in favor of the defendant Frieband. A motion for a new trial, based primarily upon the alleged insufficiency of the damage award, and raising a number of asserted trial errors, was denied, and the same points are the grounds of the present appeal. Plaintiff seeks a new trial on all issues against both defendants.

A proper understanding of the basis for our conclusion that there was a prejudicially erroneous charge to the jury by the trial judge requires a close look at the evidence bearing upon the most seriously contested issue in the cause -- the extent of plaintiff's disabilities following the accident and

the degree of their proper attribution to the injuries she sustained therein.

Plaintiff was a woman of about 40, with two children, 13 and 11, separated from her husband, and employed as an I.B.M. machine operator in a department store. She was apparently in good health prior to the accident.

Immediately after the accident plaintiff was taken by ambulance to the Dover General Hospital, where X-rays were taken and injections administered to relieve pain. After several hours she left the hospital to go to her brother's bungalow at nearby Lake Hopatcong. She was given sedatives by a local physician, Dr. Gianni, for extreme pain "in the lower spinal column." He testified she was then "in somewhat of a shock condition" and that "she had some bruises * * * of her leg, contusions and abrasions" in addition to spinal "extreme tenderness." Late in the evening of the next day, August 3, at her own request, she was transported in a station wagon to her home in Brooklyn, lying on a board and mattress. In the absence of what her council describes as "her family orthopedist, Dr. Magilligan," she called a Dr. Fett, who directed her removal in an ambulance to Long Island College Hospital, and this was done August 5. She was treated there for three weeks and outfitted with a surgical steel corset by Dr. Fett. She described her state of disability after returning home, and at the time Dr. Magilligan saw her, September 7, 1953, as follows:

"I didn't move off that orthopedic bed. I was fed. I used the bedpan. I couldn't sit nohow. I just had to lay flat. * * * I couldn't move anything. My whole back, my legs, my head, all my whole body was paralyzed. I just couldn't move. * * * I couldn't pick up my head to even take a glass of water. I had to drink with a tube."

On Dr. Magilligan's first examination of her, she testified, he told her she had "very severe back injuries," she should "stay laying down" and "get an infra ray lamp." She thereafter visited his office every three weeks and was given diathermy treatments and prescriptions for sedatives. By the end of December 1953 the upper portion of her back improved,

she said, so that she could half sit up a little and could feed herself but still "was laying down most of the time." But she could not get up or walk. Her middle and lower back pain remained the same. Dr. Magilligan then sent her to the Holy Family Hospital in Brooklyn, and she received "nerve block" treatment. He also ordered her a plaster of paris cast, which she said she wore four months after December 1953. During that entire period, she said, she couldn't get out of bed, even for eating or bodily functions. Her pain was continuous. Yet Dr. Magilligan "made me go to his office for treatments." She got into the car with assistance. Later the cast was altered so that it could be removed. She wore it until August 1955. As of the trial, in January 1956, she was doing limited housework but was suffering continual pain, whether lying down or standing up.

Dr. Magilligan's testimony was taken in New York on depositions December 28, 1955 and read into evidence. He is an orthopedic specialist. The first time he saw the plaintiff "she seemed to be * * * in rather acute distress" and complained of severe pain over the entire lower part of her back "from the sacrum to the middle lumbar portion." She had a swelling in the left sacro-iliac region and pain in the left public region. There was no other abnormality. A cursory neurological examination was negative. He could not conduct a full routine examination of her back, because she had "difficulty in moving." She "had pain in trying to get into a chair and getting out." He examined her in a room used as "sort of kitchen, living room and general purpose room."

He saw her at his office again September 28, 1953 and found essentially the same conditions, marked limitation of motion, and pain on motion. He suggested she should try to increase her activities. He saw her thereafter at his office from time to time until April 6, 1955. The treatments were mainly to reduce pain. A caudal block was performed for this purpose. There was also a myelogram in June 1954, which was negative. Objectively she showed improvement, but her subjective complaints remained the same. In answer

to a question on direct examination as to whether, from September 1953 to April 1955, the plaintiff could carry on her normal endeavors, he said:

"A. My impression during this period of time that she was coming to me, she complained slightly. I know she had some definite injury. I don't think there is any question about it. But the continued complaint of pain later on in the course of this ailment and the variable findings that I recorded gave me the impression that there was not a true organic disorder, and I didn't feel that there was any real skeletal or muscular skeletal pathology herself which prevented her from working, but she did develop a mental attitude, * * *."

He said her continued wearing of the plaster jacket in the later stages of his treatment was contrary to his advice that she gradually remove it. He summed up his general impression of the degree of her injuries as "some moderately severe injuries in her lower back" and said that when he last saw her "there was no residual orthopedic pathology." He said he had never been shown the X-rays taken at the Dover General Hospital and his diagnosis was subject to what ...

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