Berson v. Smith

254 A.D. 676, 3 N.Y.S.2d 293, 1938 N.Y. App. Div. LEXIS 7103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1938
• Status: Published

Opinion

In a collision between two automobiles in the borough of Brooklyn, three of the four plaintiffs, occupants of one of the automobiles, received personal injuries. They brought an action for damages, and Israel A. Snitzer, the father of Mildren J. Berson, who at the time of the accident was an infant and unmarried, joined with them, suing to recover for medical expenses and loss of services. Plaintiffs Berson were awarded damages in the sum of $200 each, and plaintiff Israel A. Snitzer in the sum of $100. As ot the remaining plaintiff, Sidney Snitzer, the verdict was against him and in favor of defendant. The four plaintiffs join in the appeal. As to plaintiffs Israel A. Snitzer, Mildred J. Berson and Sidney Snitzer, the judgment and order are unanimously affirmed, with costs to respondent. As to plaintiff Irving Berson, the judgment and order are reversed on the law and the facts, and a new trial granted, with costs to appellant to abide the event. As to the plaintiff Mildred J. Berson, there was competent proof entitling the jury to find that she had not sustained various fractures, a separation of the symphysis pubis, a displacement of the left sacroiliac joint, and that she had not contracted arthritis, as claimed. The jury was entitled to find that there was no occasion or necessity for the treatment rendered, consisting of encasing the plaintiff in a plaster parís cast and subsequently in a brace and a patented steel corset, together with confinement to bed for any substantial period of time. The cause of action of the appellant Israel Snitzer is dependent upon the nature and extent of the injuries to the plaintiff Mildred Berson as found by the jury. In view of the jury’s finding as to her, it does not appear that the expense and loss of service claim was necessarily incurred so as to render the defendant liable. In view of the conceded or undisputed injuries sustained by appellant Irving Berson, consisting of an oblique fracture of the right clavicle, bleeding from the eardrum, a definite cerebral concussion and two sears of the face, together with some diminution of earnings, as well as conceded or undisputed hospital and medical expenses of approximately $300, the verdict in his favor is inadequate. As to plaintiff Sidney Snitzer, a clear question of fact on the issue of liability as to whether or not this plaintiff was guilty of negligence contributing to the happening of the accident was presented to the jury.