Franzese v. Mackay Trucking Corp. , 10 A.D.2d 713 ( 1960 )

In an action to recover damages for personal injuries, the appeal is from so much of a judgment, entered on the verdict of a jury, as is in favor of respondent against appellant. Respondent presented evidence that he was driving a passenger automobile and had brought it to a complete stop on the roadway, that a few seconds later it was struck in the rear, that respondent was thus pushed forward so that his stomach struck the steering wheel, and that as a result he suffered a bleeding duodenal ulcer and other injuries. Judgment insofar as appeal is taken reversed and a new trial granted as to the issues raised by the complaint and appellant’s answer, with costs to appellant to abide the event. The opinion of respondent’s medical expert was legally incompetent inasmuch as it was based (1) upon several assumptions of facts which were not proved, such as the assumptions that respondent was predisposed to ulcers and that he suffered a shock which might have affected his endocrine glands, which in turn might have precipitated the bleeding ulcer, and (2) upon the expert’s extrajudicial conversations with respondent’s attorney. Without this testimony there is insufficient evidence in the record to warrant the verdict. Nolan, P. J., Beldoek, Ughetta, Kleinfeld and Pette, JJ., concur.