Kendrick v. Riccio , 122 N.Y.S.2d 542 ( 1953 )

Defendants have appealed from a verdict of $15,000 in favor of plaintiff and from an order denying a new trial. The case was tried before a jury at a term of the Supreme Court for Bensselaer County. The verdict was rendered by ten jurors, two jurors voting for a verdict of $71.39, the stipulated amount of damages to plaintiff’s automobile. The accident out of which the case arose occurred September 26, 1949, in the village of Green Island, New York, when a tractor truck owned by defendants Biccio and Giordano and driven by defendant Husgen backed into a car owned and occupied by plaintiff. Defendants having conceded liability on the trial, the only issue here is their claim that the verdict was grossly excessive. Plaintiff claimed a permanent and painful injury to her back. After the accident she continued work and testified to the loss of two half days of employment by reason thereof. There was medical testimony as to the permanency of her condition. One physician found a slight muscle spasm over the lower lumbar region of the back. Another described her ailment as a moderate restriction of lumbar spine motion, a muscle spasm and symptoms of a restricted ability in raising her legs from a reclining position without pain. The verdict was unquestionably excessive. As the record does not furnish a basis on which this court can determine the correct amount of damages with reasonable certainty, as the basis for a conditional order, the order and judgment appealed from are reversed, on the law and facts, and a new trial directed, with costs to the appellants to abide the event. Poster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.