Drury v. Bone

33 A.D.2d 886, 307 N.Y.S.2d 764, 1969 N.Y. App. Div. LEXIS 2644

Opinion

Judgment and order reversed on the law and facts, with costs to .appellants, and new trial granted solely on the issue of damages. Memorandum: Plaintiffs appeal from a judgment entered upon a jury verdict in favor of plaintiff Wayne Drury, of $1,000 for personal injuries and in favor of plaintiff Rose Drury, his mother, of $3,000 on her derivative cause of action. Defendants have not cross-appealed so it follows that no issue is presented as to their liability. The award to the infant plaintiff was patently inadequate. He suffered a severe head injury which required a craniectomy to remove a large hematoma and a trephine to remove a small subdural hematoma from the left side of the brain. His medical and hospital expenses were stipulated to be $3,209, of which amount the mother had received $1,000 as medical payments from defendants’ insurance carrier. The jury was inadequately instructed on the subject of damages and particularly the nature and extent of the mother’s derivative action. In the interest of justice all parties should have an opportunity to retry the issue of damages. All concur, except Moule, J., who dissents in part and votes to reverse and grant a new trial, in the following memorandum: The jury first brought in a verdict of no cause of action on Wayne Drury’s suit for damages for his injuries, pain and suffering; only after being sent out for further deliberation at the court’s instruction did it return a verdict for him. This verdict was a compromise one. However, on the other hand the jury overcompensated his mother, Rose Drury, on her derivative action. I believe under all the circumstances a new trial should be granted on all issues. (Appeal from judgment and order of Wyoming Trial Term in automobile negligence action; order denied motion to set aside verdict.) Present — Del Yecchio, J. P., Marsh, Moule, Bastow and Henry, JJ.