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Aiello v. Myzie

Decided: June 18, 1965.

JOSEPH AIELLO, PLAINTIFF-APPELLANT,
v.
R. W. MYZIE, DEFENDANT-RESPONDENT



Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiff seeks to set aside a Law Division judgment for $6,500 in his favor, based upon alleged trial errors and error in the denial of his two motions for a new trial.

Plaintiff sued for personal injuries sustained in an accident which occurred on October 9, 1961 when his car, which was

stopped preparatory to entering the expressway leading to the Walt Whitman Bridge, was struck in the rear by that of defendant. In addition to disputing liability, defendant contested his responsibility for a low back injury claimed by plaintiff for which he had undergone surgery, and by reason of which he was still disabled at the time of trial.

At the trial plaintiff, a driver for an armored car company, testified that the accident occurred as he was on his way to work. He was compelled to stop work some two or three hours after the crash due to pain and disability in his head, neck, shoulders and right arm. He received heat treatments to his neck until about November 30, 1961, and was then admitted to the West Jersey Hospital where he received conservative treatment, including a spinal tap and myelogram, over a period of 11 days. He was later readmitted to the same hospital where Dr. Stanley L. Brown, an orthopedic surgeon, performed a lumbosacral fusion. Up to the time of trial (June 17, 1963) he had not returned to work. He admitted involvement in an earlier accident in Philadelphia on August 19, 1960 but testified that the injury there had been to his "upper back" and that his recovery had been "perfect." His special damages (out-of-pocket expense) to date amounted to $6,496.60. Including future medical expense and loss of wages, they amounted to $7,144.

Dr. Brown testified that plaintiff had sustained, among his other injuries, "a traumatic aggravation of a preexisting congenital low back problem." The congenital condition was known as spina bifida occulta, involving an incomplete closure of the spinal canal at the level of the fifth lumbar vertebra and the first sacral segment. On February 4, 1963 he performed a laminectomy and fusion of the lumbosacral joint. He was of the opinion that the result was satisfactory although he would be better able to judge that when later tests were completed. In his opinion, based upon the history and his findings, the condition for which he treated and operated upon plaintiff was causally related to the accident.

Additional phases of the medical testimony will be discussed infra. The jury found in favor of plaintiff by a vote of 10 to 2.

Plaintiff thereafter unsuccessfully moved for a new trial as to damages on the ground that the verdict was so inadequate as to be contrary to the weight of the evidence. While the matter was pending before us, plaintiff made a second motion for a new trial based upon alleged newly discovered evidence. This motion was likewise denied. The present appeal challenges the denial of both motions.

We perceive no merit to plaintiff's contention that the trial judge erroneously refused to permit him to produce the testimony of two of his witnesses out of turn. The order of proof is generally a matter which is left to the discretion of the trial judge. Handelman v. Handelman, 17 N.J. 1, 9 (1954). We are satisfied that such discretion was not abused here. The witnesses in question were fellow employees who were called for the purpose of establishing plaintiff's employment and physical condition prior to and following the accident. The suggestion is now made that they were not later produced because it was impossible to do so. If such was the case, it was not brought to the attention of the trial judge. On the contrary, the court was advised that they were being called out of turn "to save as much time as possible." There was nothing before the court to indicate that they could not be called later, and proof is lacking that they were not thereafter available.

Plaintiff next contends that the trial judge erroneously instructed the jury as to the damages allowable for aggravation, citing Dalton v. Gesser, 72 N.J. Super. 100 (App. Div. 1962), and McCray v. Chrucky, 66 ...


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