Gaulkin, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
In this negligence case defendant appeals from a judgment entered in the Middlesex County District Court on a jury verdict of $10,000 in favor of Josephine Grassi, and a verdict of no cause of action upon the per quod claim of her husband Joseph Grassi.
The facts relevant to the accident are essentially undisputed. On December 29, 1960 Mrs. Grassi, then aged 60, was employed in Newark, New Jersey. At about 4:35 P.M. on that date she boarded a passenger train of the defendant at its station in Newark and arrived at her destination, the Rahway station, a few minutes before 5 P.M. Freezing rain was falling at the time. She was seated in the second car of the train "about three or four seats back." Along with a number of other passengers she was leaving through the front door of that car. She testified:
"I waited until the train stopped and there were people getting out, but when I went out, I was going right out to the door. There was nobody there. I just put my left foot out to get off the train. * * * I got up and started to walk down, I put my left foot out on the platform. There was a little snow on there. It was raining, sleeting and freezing, that rain. I went to put the weight on my left foot and
lift up my right foot. I fell back and I hurted my knee and the front of the shin of my leg. My hand turned over and my thumb and fingers, wrist was hurt."
Two men picked her up and the train conductor came to the scene. They sat her on a bench and then called the police. An ambulance was summoned. She was carried by stretcher to the ambulance and taken to the Rahway Hospital.
Mrs. Grassi had been employed for 27 years. She was the sole breadwinner for herself and her husband with whom she lived. Her husband, aged 72 at the time of the trial, had been retired for seven years prior to that time. As the result of this accident and a subsequent accident which occurred on December 6, 1962, which the jury on the basis of the medical proofs could have found was causally related to the accident in question, Mrs. Grassi sustained a substantial loss of wages and incurred bills for hospital and medical treatment. The trial court, without objection, expressly charged the jury that all of those losses were recoverable by Mrs. Grassi (if they found the defendant liable), and not by her husband. The court limited the husband's per quod claim to such sum as the jury might find represented compensation for the loss of services and consortium of his wife. The husband did not testify. The evidence respecting the loss of services suffered by him was minimal, being confined to testimony that he performed minor household chores during the period of his wife's disability.
The first point raised by defendant on this appeal is that the verdicts of the jury in favor of the injured wife and against the per quod claims of her husband were so inconsistent and irreconcilable as to require reversal. We disagree. It is, of course, settled that inconsistent and irreconcilable verdicts are fatally defective and should normally be set aside. The grounds customarily assigned as the reason therefor are that the jury failed to comprehend the issues involved in the trial and, by their verdicts, demonstrated their unfitness to determine the rights and obligations of the respective parties. Brendel v. Public Service Elec. and Gas Co. , 28 N.J. Super. 500, 507
(App. Div. 1953). In the Brendel case a jury awarded a verdict in favor of a husband and father who sued per quod to recover for expenses incurred for medical attention, hospitalization, etc., for his wife and children, for the cost of employing domestic help while his wife was incapacitated, and for the loss of his wife's services. The jury also assessed damages in favor of the wife, but denied recovery to the two infants. In that case the court noted that the injuries to the infants "were quite slight" and that while the jury would have been justified in rendering small or nominal verdicts in favor of the infants, their failure to do so was not error of which the defendant could complain, and did not justify invoking the rule relating to irreconcilable or inconsistent verdicts. The basis of the holding was that two things are necessary to support a verdict in favor of a plaintiff in a negligence suit, namely, proof of negligence on the part of defendant, and proof of a compensable injury suffered by plaintiff, 28 N.J. Super. , at pp. 508, 509, citing Watkins v. Myers , 12 N.J. 71 (1953).
In the case at bar the jury might well have concluded that the proofs did not establish the claim of loss of services, or that the loss, if there was one, was minimal and incapable of pecuniary evaluation, in either of which events the verdict rejecting the husband's claim would not have been inconsistent with the verdict in favor of the wife. Furthermore, we deem it of some importance that defendant objected to the court's submitting to the jury the husband's claim, taking the position that no proof had been submitted in support of it. Lastly, we entertain considerable doubt that defendant is in a position to complain of the failure of the jury to award damages to the husband and to convert that complaint to the assertion that the verdicts were inconsistent. Compare Windisch v. Comerford Const. Co. , 8 N.J. Misc. 70, 148 A. 926 (Sup. Ct. 1930); Dumphy v. Thompson , 3 N.J. Misc. 1086, 130 A. 639 (Sup. Ct. 1925).
Plaintiff called as a witness Esther Karmazin, a fellow passenger on defendant's train, who ...