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Dillon v. Bundy3/5/1991
FAULKNER, Judge.
Plaintiffs appeal from a judgment of the Franklin County Court of Common Pleas denying their motion for a new trial. Plaintiffs requested a new trial on the issue of damages for the reason that the jury verdict in their favor was inadequate.
Plaintiffs, Jo Mae Dillon and Roger W. Smith, were injured on May 10, 1985 when defendant, Fay E. Bundy, negligently operated her automobile into plaintiffs, vehicle at the intersection of Sullivant and Davis Avenues. Defendant failed to stop at a flashing red stop signal, which signal was flashing yellow for plaintiffs. As a result of defendant's negligence, plaintiffs sustained various injuries.
Plaintiffs initiated this action for negligence in the common pleas court on January 28, 1987, seeking compensation for their injuries. Prior to trial, the trial court granted partial summary judgment in favor of plaintiffs on the issue of defendant's negligence, leaving for trial only the determination of any comparative negligence on the part of plaintiffs and the amount of any damages sustained as a result of defendant's negligence.
At the conclusion of the jury trial conducted in November 1989, the trial court denied plaintiffs' motion for a directed verdict on the issue of comparative negligence and left that issue for the jury's determination. The jury returned a verdict in favor of plaintiffs in the amounts of $4,050 in favor of plaintiff Dillon and $3,750 in favor of plaintiff Smith. The jury also found no comparative negligence on the part of either plaintiff.
Contending that the verdict was clearly inadequate in light of the evidence adduced regarding both the severity of the injuries and the amount of the medical bills incurred, plaintiffs moved the trial court for a new trial pursuant to Civ.R. 59, contending that the verdict was contrary to the weight of the evidence and/or the result of passion or prejudice resulting from improper argument by defense counsel. On January 17, 1990, the trial court denied plaintiffs' motion for a new trial and this appeal followed.
Plaintiffs assert the following six assignments of error for consideration by this court:
"1. The trial court erred in refusing to sustain objections to argument and opening statement by defense attorney Marsh accusing both plaintiffs, attorney and plaintiffs with running up chiropractic bills for unnecessary treatment in order to build up a claim, characterizing the chiropractic treatment as `shake and bake,' calling plaintiffs' attorney `Dr. Bendig', and most specifically presenting as factual, a totally false scenario of a meeting in the plaintiffs' attorney's office between the attorney and plaintiffs, where the attorney tells the plaintiffs to go down the street to the local chiropractor and run up bills in order to build up a claim.
"2. The trial court erred in refusing to grant a new trial after the verdict based upon the misconduct of defense counsel during the trial proceedings, as described in the first assignment of error, and as apparent in the transcript of the entire proceedings.
"3. The trial court erred in denying motion for summary judgment and motion for directed verdict on the question of comparative negligence by plaintiffs.
"4. The trial court erred in refusing to allow the investigating police officer to give an opinion that the plaintiff was not traveling at an excessive rate of speed, and give an opinion that the plaintiffs did not contribute to the collision, these opinions being based upon the facts he assembled at the scene as part of his official investigation, and based upon his extensive experience in acci
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