Parker v. McConnell Manufacturing Co. , 40 A.D.2d 587 ( 1972 )

Judgment unanimously modified on the law by deleting therefrom the award of $25,000 for conscious pain and suffering and as so modified affirmed, with costs to plaintiff-respondent. Memorandum: There was no proof that decedent suffered any conscious pain. He was unconscious immediately following the accident. His attending physician testified that he was unconscious when admitted to the hospital and remained unconscious until his death which occurred 12 days thereafter. His wife testified that on several occasions during the first days of his hospitalization he turned his head, moved his jaw or moved his leg when she spoke to him. While it has been held that evidence of “‘moaning and groaning like he was in pain ’ ” is sufficient to sustain a verdict for conscious pain and suffering (Kinner v. Kuroczka, 12 A D 2d 383, 385), the mere movement of the head, jaw and leg without any manifestation of pain is insufficient. (Cf. Blunt v. Zinni, 32 A D 2d 882, 883; Bruck v. Meatto Trucking Corp. 20 A D 2d 521.) (Appeal from judgment of Steuben Trial Term is action for damages for wrongful death.) Present — Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.