The opinion of the court was delivered by: DUSEN
This personal injury action, which resulted in a special verdict for plaintiff on May 6, 1962,
is before the court on plaintiff's post-trial motion for a new trial on the issues of damages and contributory negligence or, in the alternative, for a new trial on all issues.
In May 1957, the plaintiff slipped off some cartons of pineapple juice on which he was working while unloading these cartons in the lower hold of a ship and fell about 15 feet to the bottom of the hold, fracturing two ribs (11th and 12th; see P-1) and injured his lower back. Well-defined osseous repair of the rib fractures was noted by July 8, 1957 (see P-1), and plaintiff returned to work that month. In his pre-trial memorandum, plaintiff claimed severe and continuing back pain, frequently disabling in nature, as a result of herniation of the fourth and fifth lumbar intervertebral discs (p. 3 of Document No. 10). Defendant admitted total disability for a period of nine weeks, but alleged that 'Any difficulties in the back area are chronic, degenerative changes unrelated to the accident complained of' (page 2 of Document No. 11).
Plaintiff testified that he worked steadily from July 16, 1957, to February 12, 1959, due to economic need, but he was constantly in pain.
On February 12, 1959, plaintiff had another accident
on another ship of another company, which resulted in an injury to his ankle and total disability until April 13, 1959. He lost time from work in May 1959 due to pneumonia. He did not consult a doctor for any medical treatment in 1960, 1961, or 1962
until April 23, within two weeks of the trial, when he was advised by Dr. Erdman that he should do no further heavy work until he had a myelogram, which might indicate the need for an operation to eliminate the nerve root irritation that, in the doctor's opinion, was caused by the accident of May 1957 (N.T. 24-27 & 40 of Document No. 28). Also, Dr. Myers testified for plaintiff that he had a herniated intervertebral disc caused by the accident of May 1957 which required a myelogram. An operation was scheduled for May 16, 1962, but was cancelled in the light of what plaintiff considers the inadequate damages awarded by the jury, and he has admittedly returned they are not inconsistent with defendants'
The uncontradicted work records show that plaintiff worked at least 285 1/2 hours in the last quarter of 1961 and 298 1/2 hours in the first quarter of 1962. During the first 21 days of April 1962, n5 he worked these hours on these days (D-1):
Days Worked Hours Days Worked Hours
4/ 3/62 4 4/14/62 5 1/2
4/ 4/62 8 4/16/62 11
4/ 5/62 6 1/2 4/17/62 7 1/2
4/ 6/62 8 1/2 4/18/62 6
4/ 9/62 7 4/20/62 4
4/11/62 6 4/21/62 4 1/2
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