Opinion
June 28, 1966
MEMORANDUM BY THE COURT. Appeal from a judgment in the amount of $3,570 after trial without a jury in Albany County Supreme Court. The sole issue is whether or not the judgment is excessive. It appears that the plaintiff expended the sum of $95 for medical expenses, of which $80 was for 11 visits to his family doctor. The plaintiff testified to lower back pain from time to time following the automobile accident and that at one point the pain was so severe that he could not move the lower part of his body. It appears that the pain would at times disappear and at other times become moderate and that he still has recurrence of pain in his back. His doctor, when testifying three years subsequent to the happening of the accident, stated that he found muscle spasms on two occasions and that this condition was causally related to the accident. He further testified that he could not state when the backache symptoms would cease. He also stated that when there is an injury to the muscles and the tendons, exercise is one of the recommended treatments for such condition. The element of pain and suffering will vary from case to case and is primarily a matter of credibility and within the range finding of the trier of the fact. In this case it appears that the plaintiff suffered severe pain on occasions and will be subject to backaches for an indeterminate length of time. Accordingly, it does not seem that $3,200 is excessive for pain and suffering where such pain had already continued for three years at the time of the trial. In any event, the amount is not so shocking as to require intervention by this court. The property damage amount was stipulated between the parties. Judgment affirmed, with costs. Herlihy, J.P., Reynolds, Taylor, Aulisi and Staley, Jr., JJ., concur.