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Gambrell v. Zengel

Decided: May 26, 1970.

CAROL GAMBRELL, PLAINTIFF-RESPONDENT,
v.
JOHN A. ZENGEL AND JANE R. ZENGEL, DEFENDANTS-APPELLANTS



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

Plaintiff was the operator of an automobile which was struck by defendants' vehicle at the intersection of First Street and Lexington Avenue, in Lakewood, New Jersey, on February 20, 1965, at about 11:30 P.M. Plaintiff sued in negligence to recover for her personal injuries and consequential damages.

At the trial defendants admitted liability and litigated only the issue of damages. The jury awarded plaintiff $7105. Defendants' motion for a new trial on the several grounds stated in its notice thereof was denied. Defendants appeal from the whole of the judgment based upon the verdict and entered in favor of plaintiff. Two grounds are advanced for a reversal. We shall discuss them in the order presented in defendants' brief.

I

Defendants contend that the trial court erred in admitting into evidence photographs of the intersection where the accident occurred and of the respective automobiles following the collision, and also in admitting the testimony of the investigating police officer as to the location of the debris at the scene and the distance traveled from the alleged point of impact. They argue that, liability having been admitted, such evidence and testimony had no probative value of any facts in dispute at the trial and only served to inflame the passions of the jury and prejudice the jurors against defendants.

The only purpose in admitting the photographs and police officer's testimony was to show the force of the impact through the damages to the vehicle and the distance traveled, which allegedly caused plaintiff's injuries. Defendants claim that it was unfair thus to permit the jury to infer that plaintiff sustained serious personal injury, since a heavy impact between two vehicles is an unreliable barometer of the severity of physical injury sustained.

It must be conceded that the force of the impact, when two automobiles collide, does not necessarily justify an inference that the occupants of the vehicles sustained serious physical injuries. As defendants' medical expert expressed it:

I have known people who step off a curb and break a leg and a car can turn upside down and you can be lucky and walk away from it without a scratch; * * *.

At the same time it is a generally accepted rule that evidence of the speed at which the colliding cars were traveling, the severity of the physical impact and the manner of the happening of the accident is admissible where there is an issue as to the seriousness of plaintiff's injuries. And this, too, despite admitted liability. See Martin v. Miqueu , 37 Cal. App. 2d 133, 98 P. 2d 816 (D. Ct. App. 1940); Johnson v. McRee , 66 Cal. App. 2d 524, 152 P. 2d 526 (D. Ct. App. 1944); Phillips v. Lawrence , 87 Ill. App. 2d 60, 230 N.E. 2d 505 (D. Ct. App. 1967); Hall v. Bukert , 117 Ohio App. 527, 193 N.E. 2d 167 (Ct. App. 1962); Hayes v. Sutton , 190 A.2d 655, 656 (D.C. Cir. 1963); Annotation, 80 A.L.R. 2d, at 1224-1231 (1961) and 1968 supplement thereto, citing additional cases in accord.

Patras v. Waldbaum , 170 Neb. 20, 101 N.W. 2d 465, 470 (Sup. Ct. 1960), the only case cited by defendants on this point, was decided on the correct formula to follow in instructing a jury as to future damages. It also held photographs are admissible in evidence where they may be instructive upon a question for determination, but such a question was not present in that case.

In Murray v. Mossman , 52 Wash. 2d 885, 329 P. 2d 1089 (Sup. Ct. 1958), it was held that the trial court did not abuse its discretion in admitting evidence of five photographs of the scene of the automobile accident in question for the limited purpose of showing the force of the ...


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