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Angel v. Rand Express Lines Inc.

Decided: February 21, 1961.

GEORGE ANGEL, AN INFANT, BY HIS GUARDIAN AD LITEM, BELLE ANGEL, AND BELLE ANGEL, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
RAND EXPRESS LINES, INC., DOMINICK DAVANZO AND ALLEN TABACK, DEFENDANTS-RESPONDENTS



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

Freund

Plaintiff George Angel, an infant, by his guardian ad litem , instituted suit in the Law Division, Bergen County, for personal injuries sustained while a passenger in an automobile operated by the defendant Taback. The accident occurred on March 5, 1958, when the Taback vehicle collided with a tractor-trailer owned by the defendant Rand Express Freight Lines, Inc., and operated by its employee, Davanzo.

As a result of the collision Angel, then 19 years of age, was thrown from the motor vehicle onto the highway and rendered unconscious. He was taken to the Presbyterian

Medical Center, where examination and X-rays disclosed a laceration of the right frontal area of the scalp and a linear fracture of the skull to the left of the midline, approximately 4 1/2 inches in length. He remained in a drowsy and semiconscious condition until ten days after his admission, and was not discharged from the hospital until March 22, 1958. During his stay at the institution he consistently suffered from severe headaches, ranging from the right frontal area of his head to the left parietal area, and in addition experienced blurring of vision. Six days after his discharge and return to his home in Oceanside, N.Y., he was admitted to the Doctors Hospital in Freeport, N.Y. New X-rays were taken and further examinations were conducted of the patient, still complaining of headaches, dizziness and nausea; an additional diagnosis was made of contusion of the left kidney, cerebral concussion, and edema of the brain. He was discharged from Doctors Hospital on April 10, 1958, but continued, up to the time of trial, to complain of headaches and blurring and duplicity of vision. X-rays were taken about a month prior to trial, disclosing the previous diagnosis, lineal fracture of the left occipital bone, as well as a fracture of the inner table of the left parietal area.

The trial before a jury resulted in a verdict of $6,000 in favor of young Angel and $2,500 in favor of his mother Belle Angel, suing per quod. Plaintiffs thereupon moved for a new trial on the issue of damages, stressing that the verdict was grossly inadequate and therefore the product of mistake, partiality, passion and prejudice; the asserted inadequacy was also attributed to allegedly erroneous rulings by the trial court in the exclusion of certain of plaintiffs' proofs. The instant appeal is from the order denying that motion and from final judgment entered in accordance with the jury's verdict; it involves solely the question of damages and the evidence pertaining thereto.

In addition to renewing their charge that the jury's award of damages is against the weight of the evidence, plaintiffs contend that the trial judge committed prejudicial error in:

(1) excluding the testimony of their medical expert as to the alleged double vision of the plaintiff and the cause thereof, and charging the jury that all evidence relating to double vision should be disregarded; (2) barring, as an element of damages, proof of the alleged loss of a football scholarship by plaintiff due to the accident, and (3) preventing young Angel's family physician, a medical witness, from explaining certain of the hospital records admitted into evidence.

Plaintiffs produced, among other medical expert witnesses, Dr. Richard U. Stern, a physician specializing in ophthalmology, in an effort to demonstrate that Angel was suffering from double vision (diplopia), probably caused by the accident. The infant plaintiff had previously testified that he has been afflicted with blurred vision ever since the collision. Dr. Stern testified to a diplopic condition which manifested itself whenever young Angel gazed up and to the right. This was described by the physician as "left hypotropia," that is, "when the patient looks up and to his right, the left eye goes too high, because the right upper muscle is not strong enough, as a result of the injury."

Out of the presence of the jury the trial judge expressed reluctance at allowing the witness to link the diplopic condition to the plaintiff's head injury. This unwillingness was apparently based upon his assumption that sufficient evidence of brain damage had not been presented to justify the testimonial connection. Additional questioning of Dr. Stern elicited the opinion that his own examination, conducted about a month and a half prior to trial, indicated that Angel's visual condition was linked to damage in the area of the brain stem. Defense counsel then attempted to wrest from the witness concurrence in the original diagnosis of the treating surgeon at Presbyterian Hospital, that the patient had "no cranial nerve damage," but Dr. Stern did not agree:

"Q. So, as a result of examination and treatment, [if] you found there was no cranial nerve damage, what would that mean to you? A. The doctor didn't do a complete examination, because there

obviously is a definite imbalance of the eye muscles which ...


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