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November 28, 1960

George T. WADE et al., Plaintiffs,
Oscar J. LANE, Defendant

The opinion of the court was delivered by: YOUNGDAHL

This cause is before the Court now on plaintiffs' motion for a new trial, *fn1" made following a jury verdict *fn2" for defendant.

 Defendant's own testimony having established that contact between the two vehicles did come about through his negligence, there was no question of his liability to plaintiffs for any injuries which proximately resulted, and the Court so instructed the jury.

 There was a sharp dispute between the parties whether any injuries did, in fact, proximately result. Plaintiff, though admitting he had suffered several previous back injuries, contended that these had all cleared up by the time of this accident, and that new injuries -- specifically an initial back strain causing pain and suffering and resulting in a 20% Permanent partial back disability -- were directly attributable to it.

 Defendant, on the other hand, contended that the contact between the automobiles which constituted this accident was too slight to cause any injuries, and that any injuries which doctors might have found subsequently were residuals from plaintiff's prior accidents.

 Resolution of these contentions was particularly dependent on the trier of fact's evaluation of witness credibility, because all the claimed injuries, pain, and suffering were subjective, that is, dependent on the accuracy of the defendant's complaints to his examining physicians, rather than on objective findings such as x-rays or involuntary muscle spasms.

 As indicated, the jury returned a verdict for the defendant. Plaintiffs make two contentions *fn3" in arguing that it should be set aside and a new trial ordered:

 (1) That the jury finding of no injury to the male plaintiff was against the weight of the law and the evidence; and

 (2) That the Court committed prejudicial error in allowing the defendant to introduce into evidence a 'Hacker's License' application made by the plaintiff less than three months after the accident -- more particularly, the negative answer of a physician, whose examination report was a required part of the application, to the question, 'Is there any orthopedic abnormality (check muscle tone and range of movement)?' *fn4"

 For the following reasons, the Court finds neither of these contentions persuasive, and thus denies plaintiffs' motion for a new trial:

 (1) To grant a new trial on the ground that the jury's verdict is against the weight of the evidence, the Court would have to find that it is clearly so, or that for some reason, or combination of reasons, justice would miscarry if it were allowed to stand. Eastern Air Lines v. Union Trust Co., 1956, 99 U.S.App.D.C. 205, 210, 239 F.2d 25; 6 Moore's Federal Practice 3818-19.

 The Court cannot so find in this case. As detailed above, the Court's instruction for plaintiff on the liability feature of the case was limited to the statement that there was negligence. In accordance with undisputed tort principles, the jury was required to find that the male plaintiff had been injured by this negligence before it could return a verdict in his favor. And as further detailed, the evidence as to injuries was very much in conflict; and there was sufficient evidence for the jury to find that no injury had resulted proximately from this negligence: inter alia, (a) defendant Wade's testimony that immediately after the contact between the two vehicles, he had gone to the window next to which male plaintiff was sitting to ask for a pencil, and that male plaintiff had leaned forward -- without complaint of pain or evidence of restricted movement -- and obtained a pencil from the glove compartment; (b) plaintiff Wade's failure at the scene of the accident to complain to the defendant of any injury, either directly during the pencil incident, the occurrence of which was disputed by plaintiffs, or indirectly through the ambulance driver, who indisputably spoke to defendant; and (c) the report of Dr. Furnell, *fn5" which cast grave doubts on whether plaintiff had suffered any injury.5A

 That plaintiff went immediately after the accident to the Emergency Room of the D.C. General Hospital to complain of an alleged injury, or that some doctors and laymen testified that he suffered injury was, of course, evidence in his favor; but it did not so strongly outweigh the conflicting evidence that the Court felt the jury verdict to be a manifest injustice. Especially in a case such as this where the essential judgment to be made was one of credibility, a Court should be show to substitute its judgment for that of a jury. See Moore, supra.

 (2) To grant a new trial because of the admission into evidence of the 'Hacker's Application,' the Court would have to find that such admission was erroneous and ...

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