Flores v. E. W. Bliss Co. , 18 A.D.2d 1058 ( 1963 )

Memorandum by the court.

Judgment in favor of plaintiff for $117,366.35, reversed on the law and the facts, the verdict vacated, and a new trial granted, with costs to defendant-appellant, unless plaintiff stipulates to accept $50,000 in lieu of the award by verdict, in reduction of the judgment, in which event the judgment is modified to that extent, and is affirmed as thus modified, with costs to defendant-appellant. In this personal injury negligence action it is evident that the jury’s award of damages is grossly excessive, and that a verdict in excess of $50,000 is not warranted by the record. While plaintiff should not be restricted to the award of $39,000 on the prior trial, it is also true that the range of the two verdicts bears strongly on the exeessiveness of the most recent verdict (cf. Beckhusen v. Lawson Co., 15 A D 2d 455). In any event, the injuries, while serious, do not justify the extraordinary amount awarded on the instant trial. Defendant-appellant makes cogent but inconclusive argument for dismissal of the complaint. This court’s prior decision, moreover, is conclusive, applying the doctrine of law of the case (Politi v. Irvmar Realty Corp., 13 A D 2d 469, and authorities cited). On the prior appeal in this case, a new trial was ordered solely because of dissatisfaction with the testimony of plaintiff’s expert, who made references to “possibilities” and “other factors” in accounting for the accident. At the same time it was commented that “ It may be that the defendant can demonstrate mechanically that it is impossible for the rolling key to fail to engage the lateh when the nut is backed off a given number of threads. This record does not warrant our so finding.” (Flores v. Bliss Co., 12 A D 2d 467.) On the present record the experts on both sides have testified without either the imperfections originally attributed to plaintiff’s expert, or the expectations suggested of defendant’s expert. That should foreclose the question of sufficieney of the plaintiff’s prima facie case or the demonstrability of an absolute defense for defendant. That there was found to be a prima facie case, if only plaintiff’s expert’s testimony were more definitely resolved, must be implied, since this court would not have ordered a new trial except for the reasons specifically assigned. Any other view suggests unfairness and trifling with the expense and effort of the litigants, as well as the courts, in repeated litigation. It is also significant that on the prior appeal defendant then briefed and argued the case for dismissal of the complaint for insufficiency of evidence. Indeed, this was defendant’s principal argument and a new trial was requested only as an alternative. It is inescapable, then, that the court reached, rejected, and passed the contention that plaintiff’s complaint should be dismissed for failure to make out a prima facie ease. There are, of course, occasions when the appellate court, despite plaintiff’s failure to make out a ease, in the interest of justice, orders a new trial, but it is then usual for the court to describe its action and place it explicitly on that ground (e.g. Beickert v. Westchester Racing Assn., 10 A D 2d 643 [2d Dept.]; Hogan v. Chess Serv. Co., 3 A D 2d 909 [1st Dept.]; Bechard v. State of New York, 282 App. Div. 1103 [3d Dept.]; cf. Stemples v. Schwab, 218 App. Div. 282 [3d Dept.]; Rules Civ. Prac., rule 166, subd. 2). Finally, it is not for the court to suggest how the occurrence of the accident was mechanically impossible, unless there is basis in the record, supported and explicated by the testimony of experts. While all may have had experience with cotter pins, this case does not turn on the use of cotter pins in their usual or general application, but on their use in the specific instance of a metal dye-stamping machine, on a latch-key device, requiring specialized knowledge and experience (cf. 2 Wigmore, Evidence [3d ed.], § 662).