| N.Y. App. Div. | Nov 24, 1971
Appeals by defendants from a judgment of the Supreme Court, entered December 23, 1970 in Schenectady County, on a verdict in favor of the plaintiff, and by defendant Smith from an order of said court, entered January 14, 1971, which denied defendant’s motion to set aside the verdict. Plaintiff cross-appeals from so much of the judgment as was based on an order entered January 14, 1971, which denied plaintiff’s motion to amend the complaint. In this negligence action decedent was a passenger in one of the two vehicles involved in the accident. Her estate brought an action for wrongful death and conscious pain and suffering against the operators of both vehicles. The jury found against both in the sum of $70,000 for the wrongful death action and $30,834.45 in the other cause of action, including $28,000 for conscious pain and suffering. The trial court reduced the wrongful death verdict to $50,000, which was the amount demanded in the complaint. Both defendants contend the verdicts are excessive. Decedent, age 48, was unemployed and was in chronic poor health. She was the housekeeper for her 81-year-old father who was her sole distributee. He maintained the household and paid all of the expenses for the support of decedent. His life expectancy was approximately six years. Since recovery is based solely on pecuniary loss, we are of the opinion that the wrongful death verdict is excessive. As to the other cause of action, the record reveals that decedent sustained multiple injuries including fractures to the arms, legs and ribs, together with lacerations to the face and legs. She had difficulty in breathing and lost considerable b'lood. While these injuries were extensive and painful, the record further reveals that she survived for approximately nine hours, two of which she was under an anesthetic. She was also under sedation for most of the remaining time. We conclude that the verdict for conscious pain and suffering is also excessive. (See O’Malley v. Anchor Motor Frgt. Corp., 1 A D 2d 689.) One