Washburn v. Ehmke

Order affirmed with costs. All concur, except Boomer, J., who dissents and votes to reverse and reinstate the verdict, in the following memorandum.

(dissenting). In view of the testimony of the physicians and the medical attendants who saw decedent after the accident, the jury award of $2,500 for pain and suffering was not unreasonable. The physician who saw decedent at the scene of the accident stated that decedent was unconscious, and from that and other testimony the jury could infer that decedent was rendered unconscious immediately after he fell and hit his head on the pavement. The ambulance attendant testified that, although decedent moaned and groaned and responded slowly, he could not tell whether decedent was experiencing pain. The doctor who treated decedent at the hospital testified that he did not think decedent was in pain. Although the relatives of decedent testified that decedent seemed to be in pain, they were interested witnesses and the jury was entitled to discount their testimony. (Appeal from order of Supreme Court, Erie County, Flaherty, J. — set aside verdict.) Present — Dillon, P. J., Callahan, Boomer, Balio and Davis, JJ.