55 A.D.2d 833 | N.Y. App. Div. | 1976
Judgment unanimously affirmed, without costs. Memorandum: Plaintiff appeals from a judgment entered on a verdict in her favor in the amount of $750 in this negligence action. Defendant admitted liability stating that while stopped for a red light behind plaintiff’s vehicle he took his foot off the brake of his automobile and his vehicle rolled into the rear of plaintiff’s car. Defendant also conceded that plaintiff sustained a whiplash type injury as a result of the impact which involved no medical expense to her. At the time of the accident plaintiff was five months pregnant and the only dispute between the parties was whether certain complications and expenses connected with her pregnancy were causally related to the accident. Central to this issue and the expert medical evidence offered, was a question for the jury of whether plaintiff struck her abdomen at the time of the collision and the state of her health immediately afterwards. Plaintiff alleges that the jury’s verdict, implicitly finding for defendant on this question, was against the weight of evidence. We find that only an issue of fact was presented upon which the jury was entitled to find that plaintiff had not sustained her burden of proof. Plaintiff also urges an evidentiary question as ground for reversal. Plaintiff testified that she struck her abdomen in the accident, that she spoke with defendant personally three times during the first week thereafter and that on each such occasion she advised defendant, a doctor and long-time acquaintance, that she was suffering pain in the abdomen as a result of the accident. On her direct case she also attempted to testify that defendant urged her not to report the accident, but that testimony was stricken by the court. On the other hand, defendant testified that he spoke with plaintiff several times by phone the first week after the accident, once or twice during the second week after the accident, and again at the time her child was delivered in the hospital and