Vanderbeek v. State 261 A.D. 1035

— Appeal by claimant from a judgment of the Court of Claims. Negligence of the employees of the State and the claimant’s freedom from contributory negligence have been established in this and other trials and are not here in question. The only assertion of error is made by the claimant that an inadequate amount was awarded. His injuries were received when a motor vehicle fell from a highway twenty-two feet to the railroad tracks. Claimant was a National Guardsman traveling to camp in a State-operated motor vehicle. The injuries which he received were shock and to head, chest, back and right leg. Head injuries caused dizziness and a broken tooth. For three weeks he suffered pains in his chest and was unable to move his head. The back was injured in the region of the lumbar and sacro spine. There was a compound fracture of the lower one-third of the leg. The first attempt to reduce the fracture failed and it was finally reduced through an open operation, the bones being held in place by a metal plate, which was removed by another open operation following the union of the bone. Claimant was under hospital treatment substantially from August 9, the date of the accident to December 31, 1936. From January to December, 1937, he received diathermy and baking treatments. He still suffers pain from his leg injury. His right leg is atrophied to a degree and there is loss of motion in the ankle and a loss of use of fifty to sixty per cent of the right foot. The foregoing recital is from the findings of the Court of Claims. The expenses for much of the medical treatment and hospitalization has been paid by the State, but claimant personally has paid seventy-eight dollars which he should recover. The award by the State of $4,500 for personal damages is inadequate and should be increased to the sum of $10,000 and the seventy-eight dollars paid by the claimant. Judgment modified on the law and facts by increasing the damages from $4,578 to $10,078, and as so modified affirmed. The court reverses finding of fact numbered 2 and disapproves conclusion of law numbered 2 and makes the following new finding of fact: That claimant has been damaged in the sum of $10,000 in addition to the expenses of seventy-eight dollars incurred for medical bill. Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ., concur. [See ante, p. 1026.]