Teller v. Fairchild , 415 N.Y.S.2d 138 ( 1979 )

— Judgment modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: This is an appeal by defendants from a judgment of $11,700 returned against them in a death action, and a cross appeal by plaintiff from that portion thereof which set aside the verdict of $5,000 for conscious pain and suffering of plaintiffs decedent. On January 11, 1976, at approximately 6:00 p.m., decedent Earl A. Teller was operating his automobile alone in a westerly direction on Route 29 in the Town of Oppenheim when it collided with a pickup truck traveling easterly, owned by defendant Clifton Fairchild and operated by defendant Gregory J. Fairchild. The truck was rigged with a snowplow blade on the front and was pulling a trailer which in turn was carrying two snowmobiles. The driving conditions were poor and there were several inches of snow on the road with snowbanks along either side. After impact the Teller car, with damage to the left front door, came to rest backed against the snowbank on the north side of the road facing east. The pickup truck with its left front fender demolished ended up 40 feet east of the Teller car and backed into the south side snowbank and facing north across the road. The trailer and snowmobiles were lying on the highway between the vehicles. There was sufficient evidence of negligence from which the jury could have found that defendants’ vehicle was traveling on the wrong side of the road at an improper speed and moving too fast for existing conditions. (See Vehicle and Traffic Law, §§ 1125, 1128, 1180.) The damages awarded in the death action were within the proof for this 70-year-old decedent, who had a life expectancy of approximately 10.2 years and earnings of $1,319.88 in 1975, supplementing his Social Security benefits. A more difficult question arises relative to the jury award of $5,000 for conscious pain and suffering which the trial court set aside. Medical testimony established that decedent, who died on January 18, seven days after the accident, sustained a large contusion and laceration over the left side of the scalp in front of the ear with brain damage and a blood clot, which was removed by a craniotomy. The attending physician first observed decedent in the intensive care unit where, while conscious and able to give his name, he was mentally obtund and showed no objective evidence of pain although the injury itself was of a painful nature. After transfer to the hospital where the surgical procedure was performed, the neurological surgeon testified that in response to pin prick tests on his arms and legs, decedent moved all four limbs, but moved his right side more than the left. In addition, there was testimony by the Deputy Sheriff who investigated the accident that although decedent had been removed from the scene before he arrived, he talked to him in the hospital and asked him several questions. The question of conscious pain and suffering was a factual one which was properly submitted to the jury and resolved by them in favor of plaintiff. There was a rational basis for such determination which should not be disturbed (Bartkowiak v St. Adalbert’s R. C. Church Soc., 40 AD2d 306, 309; Bucek v Merritt, 37 AD2d 905). In a death action the plaintiff is not held to as high a degree of proof as is otherwise required (Noseworthy v City of New York, 298 NY 76, 80). All concur, except Simons, J. P., and Witmer, J., who dissent and vote to affirm the judgment in the following memorandum.