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Cestero v. Ferrara

Decided: April 29, 1970.

JULIO CESTERO, INDIVIDUALLY AND PER QUOD , PLAINTIFF-APPELLANT (ON COUNTERCLAIM), AND CELIA CESTERO, ETC., ET AL., PLAINTIFFS,
v.
JENNIE FERRARA, DEFENDANT - COUNTERCLAIMANT - RESPONDENT



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

Plaintiff Julio Cestero appeals from a Law Division judgment entered upon a jury verdict in favor of defendant-counterclaimant Jennie Ferrara for $60,000. The jury also returned a verdict of no cause of action on the complaint brought by Julio Cestero, his wife Celia, their two infant children Ivan and Wandi, and Carlos Cestero, owner of the car in which they had been riding, seeking recovery for personal injuries and property damage. No appeal was taken from the judgment embodying that verdict.

The actions arose out of a collision between the station wagon driven by Julio Cestero and the car operated by Jennie Ferrara, at the intersection of Route 46 and Clinton

Road in Fairfield Township, Essex County. Cestero's wife and two children were passengers in the front seat. Cestero testified that he was traveling in the westbound slow lane at about 45 m.p.h. as he approached the intersection. The weather was clear, the roads dry and traffic moderate. The intersection was controlled by traffic lights and the speed limit for Route 46 was 50 m.p.h. Cestero said that the traffic light was green for him from a distance of 100 to 200 yards from the intersection up until the time of impact. This version of the accident was corroborated by Mrs. Cestero and an independent eyewitness, one Calderone, whose deposition was read into evidence because he was out of the State and unavailable at the time of trial.

Mrs. Ferrara had been traveling north on Clinton Road. Her testimony was that she stopped at a red traffic signal controlling the intersection and when the light turned green in her favor she proceeded into the intersection after first observing that cars in both eastbound lanes and the westbound fast lane on Route 46 had stopped for the red light. She admitted that she never saw the Cestero vehicle before the impact, which occurred after she had crossed the eastbound lanes and the westbound fast lane on Route 46. The photographs admitted in evidence show that the Cestero vehicle ran into the side of the Ferrara car with considerable impact.

Defendant produced Mae Pezdic who testified that she had been traveling east on Route 46 and intended to exit therefrom by entering Clinton Road via a jughandle and then proceed across Route 46. She said that when she came off Route 46 into the jughandle she heard a crash and noticed that the traffic light controlling the intersection ahead of her, and through which the Ferrara vehicle had already passed, was definitely green for Clinton Road. However, it changed to red just as she reached Route 46.

Mrs. Ferrara's first recollection of the events following the collision was during emergency treatment at the Mountainside Hospital where she had been taken by ambulance.

She had sustained a comminuted fracture of the right femur and multiple contusions and lacerations. Dr. Greene, who performed an open reduction and set the fracture with a plate and nails, said that there was a question of brain concussion at the time. Following the operation Mrs. Ferrara was placed in a spica cast extending from the upper abdomen to below the ankle. The cast was removed some 3 I/2 months later, but during that period Mrs. Ferrara was readmitted to the hospital by ambulance on three occasions for additional treatment. Following removal of the cast she used crutches, and shortly thereafter went to one crutch and then to a cane. Dr. Greene testified that the injured leg was longer than the other, causing Mrs. Ferrara to limp. He said that she would limp and be plagued with continuing pain the rest of her life. The persistent pain was to a considerable degree caused by the position of the plate and pins, and this might require another operation to remove them. Another permanent residual of defendant's injuries was a scar running a considerable length along the outer aspect of the right thigh, and this scar was shown to the jury.

The Cesteros produced Dr. Dilger, who had examined Mrs. Ferrara for trial purposes but had never viewed her x-rays or medical records. His conclusions as to the nature of her injuries and her condition was reached 18 months after the accident on the basis of a single examination. He testified that the alignment of the injured leg was very good, both legs were of equal length, there was no muscle atrophy, and there was a slight limitation of internal rotation of the hip. Counsel for the Cesteros had Mrs. Ferrara walk the length of the courtroom in the presence of the jury so that Dr. Dilger could observe the degree of her limp, although this had been done for the doctor's benefit during an earlier court recess. Following the court demonstration the doctor said he had noticed that Mrs. Ferrara walked "holding the leg quite stiff, which is not normal" -- in other words, her limp appeared to be exaggerated.

Mrs. Ferrara's special damages to the date of trial totalled $4,500, an uncontested figure. Her age at the time was 37, and her life expectancy was given as 38.46 years. As the court noted in the course of the argument on plaintiffs' motion for a new trial, Mrs. Ferrara looked at least 20 years older. A former licensed beautician, she had planned to open her own beauty salon. She testified she would not be able to open her own place because she could not stand for any length of time.

A day after Mrs. Ferrara had testified counsel for Carlos Cestero moved for a mistrial, claiming that while Mrs. Ferrara was on the stand testifying on direct examination about her limp and how people commented upon it juror No. 6 was crying. (As to this, more later.) Asked by the trial judge to explain how the juror was crying, co-counsel said that "both eyes were red and there were tears in her eyes. She bowed her head down and covered her eyes with both hands." In denying the motion the judge said that he did not think the juror was emotionally involved; he did not observe the condition co-counsel described, nor had the court clerk, who faced the juror, or defense counsel. It is to be noted that neither the attorney who claimed to have ...


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