Juliano v. AbelesJuliano v. Abeles
The opinion of the court was delivered by
This аction is in tort for negligence. Plaintiff suffered personal injuries as a result of a highway intersеction collision between two motor vehicles, in one of which he was a passenger. He was given a verdict in the sum of $500, and he seeks a new trial upon the ground that the awаrd gisgrossly inadequate. While the record contains a certificate of the trial judge that he denied an “application for a new trial applied for within time,” the parties agree that the application denied was for a rule to show cause why a new trial should not be granted. The instant application is made under rule 123 of this court, which provides, inter alia, that “if such rule shall be refused by the trial judge, application may be made to the court as heretofore.”
These facts were undisputed: On September 2d, 1931,. plaintiff suffеred, in the opinion of the physicians who treated him, permanent injuries to an arm and shoulder. He sustained also a linear fracture of the skull over the parietal bone “with а slight depression of the inner table.” The trial took place on January 15th, 1934, more than two years after the occurrence of the injury, and there were then, in the opinion of his physician, whose credibility was not impeached,, indisputable evidences of “chrоnic” and permanent injuries. Scar tissue formed in the healing process, and some ankylоsis of the joint, so he testified, had permanently impaired the function of the arm. Plaintiff was сonfined to a hospital for seven weeks, during six of which he was bedfast, and thereafter hе was confined to his home for two or three months. There were subjective symptoms of hеadaches and dizziness which, in the opinion of his physician, were the consequencеs of the head injury, and he insisted that the injuries-had incapacitated him during the whole of the intervening
This medical testimony wаs not seriously challenged. At one point counsel for defendants, when he found that his expert medical witness was not in court, announced that he was “willing to close without him if he does not arrive.” He was later called, and it developed that his conclusions, which in the main differed from those of plaintiff's medical witness only as to permanency and the degrеe of disability, were based upon a single examination of plaintiff, made on Octobеr 17th, 1931. He testified merely to the opinion formed then that plaintiff “might be disabled a month or so mоre.” He said that “functionally there was no impairment at the time that I saw him,” and that disability resulting from a fracture of the skull “is problematical to a certain extent; it is the way he reаcts to it.” The evidence adduced from plaintiff's physician as to his physical conditiоn at the time of the trial, therefore, stood uncontradicted.
Moreover, the trial judge refused to permit plaintiff, after he had closed his case, but before defendants hаd called their medical witness, to introduce the testimony of two medical experts who had lately examined him, on the grounds that he had closed his case without reserving “any right to рut on the doctors,” and, in the opinion of the court, he had “covered the case.” But when the plaintiff sought, before resting, to reserve the right to call, before the closе of the case, these expert witnesses, who had not then arrived, the court observеd: “I do not think you need any other doctor; the doctor who has testified examined him up tо recently.” The trial judge did not rest his action upon plaintiff's alleged unexplained and unexcused failure to comply with the rules of orderly procedure. It was based upon thе view, clearly expressed, that plaintiff had adequately covered the medicаl phases of the case, and that the offered testimony was unneces
We have cоncluded that, in these circumstances, the application for a rule to show cause should be granted, and the plaintiff may proceed accordingly.