Moore, Hays and Mulligan, Circuit Judges. Hays, Circuit Judge (dissenting).
Defendant-appellant, Gary M. Jutras (defendant), appeals from a judgment entered upon a jury verdict against him and in favor of plaintiff, Ethel West (plaintiff or Mrs. West), in the sum of $55,000 for damages for personal injuries sustained by plaintiff for which the jury held defendant liable.
Defendant also appeals from the denial of a motion to set aside the verdict and grant a new trial "on the issue of damages alone."
Because the trial court granted plaintiff's motion for a directed verdict on the issue of liability from which no appeal is taken, the facts will be confined largely to the damages issue.
On November 21, 1968, plaintiff, her daughter, her friend Mrs. Clinton, and her two daughters were returning to their homes in Montreal from a shopping trip in Burlington, Vermont. Plaintiff was seated in front on the passenger side, Mrs. Clinton was driving and the girls were in back. At approximately 5:15 P.M., the defendant's car struck Mrs. Clinton's car from the rear. It is not disputed that the cause of this accident was that defendant while traveling at a high rate of speed fell asleep at the wheel.
No one was hospitalized as a result of the injury. Mrs. Clinton, in filling out the Vermont State Motor Vehicle Accident Report, left blank the space for indicating personal injuries.
However, Mrs. West suffered considerable pain in her neck. The day following the accident she went to see an internist in Montreal. He recommended that she take Two-Twenty-Twos, codeine pills that can be bought without a prescription, and that she rest in bed. The doctor also specified X-rays. These X-rays showed that Mrs. West suffered no fractures of her bones, and that with the exception of some minimal straightening of the normal cervical-thoradotic spine, they indicated no injury.
The week following the accident, Mrs. West remained in bed. She had difficulty raising her head off the pillow. During the second week she was able to get up out of bed, but stayed at home. Thereafter she was able to resume most of her normal activities, but could not engage in any work requiring strenuous effort. Thus, whereas before the accident Mrs. West was an active housewife, who cut the lawn, gardened, shoveled snow, and even did some house painting, after the accident she could not engage in these activities. She was also forced to curtail her work in preparing refreshments for Red Cross meetings in St. Lambert, and her volunteer kitchen work for a local hospital for mental patients.
Starting in December of 1968 Mrs. West saw an orthopedic surgeon in Montreal, Doctor Murphy. He suggested heating pads, hot baths, and a Thomas collar*fn1 to relieve her neck pain. He also recommended that she see a physiotherapist. The physiotherapist suggested exercises that would and did relieve the stiffness in her neck. Mrs. West saw Doctor Murphy four or five times, and the physiotherapist three times. Finally, because of a tingling in her left hand, she saw a neurologist.
Though the condition of her neck had improved since the accident, at the time of trial Mrs. West still could not do heavy housework, occasionally wore the collar, particularly when driving, and once in awhile took a codeine pill to alleviate the pain in her neck. As a result of the visits to doctors and related medical expenses, and cleaning, laundry, and taxi bills occasioned by the injury to her neck, Mrs. West incurred expenses of approximately $1,152.*fn2
In the summer of 1970 Mrs. West's husband died. To supplement her income, she decided to return to work. She tried baby sitting but found it too strenuous. In November she took in a boarder, at $25 a month. At the time of trial she intended to return to ...