COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59316 C.L. HOLMAN, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION ARTHUR TREACHER'S INC., ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 155,446 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Ernest E. Fabian 5209 Memphis Avenue Cleveland, Ohio 44144 For defendants-appellees: Paul R. Garlock Thomas Coffee 5626 Broadview Road Cleveland, Ohio 44134 -2- NAHRA, J.: On February 12, 1988, at approximately 10:45 p.m., C.L. Holman, plaintiff-appellant, entered the restaurant of Arthur Treacher's Inc., defendant-appellee, on Madison Avenue and W. 117th Street. At such time, Holman fell on an icy floor and suffered certain injuries to his body, including his lower back and his head. Subsequent to the accident, Holman rested in bed for three days after which he visited Dr. Nicholas Economo. Dr. Economo examined Holman, conducted tests, performed treatment, and prescribed various medicines for him. Dr. Economo testified by way of video deposition and stated that Holman suffered severe, traumatic myofascitis of his lumbosacral muscles as well as pressure on the neck muscles as the result of the fall. On April 25, 1989, Holman was examined by Dr. Keith Smith, an ear, nose, and throat specialist. He too conducted a variety of tests and prescribed certain medicine for Holman. Dr. Smith testified by way of video deposition that Holman's neck and spine were aggravated by the fall and that the ringing in Holman's ears probably resulted from his head being struck when he fell. Evidence in the record indicates that Holman's medical expenses and other costs related to the injury amounted to approximately $3,000.00. In addition, Holman testified that he missed nineteen days of work as a result of his accident and that his lost wages amounted to over $1,000.00. On September 18, 1989, Dr. Donald Mann, a neurologist, received Holman's medical history and examined him. Mann -3- testified that the only injury Holman may have received as a result of his fall was a sprain or strain of his lower back which would have endured for no more than a matter of months. He determined that such injury was not permanent. Dr. Mann further testified that Holman had three accidents before the one in question. Dr. Mann stated that the x-rays taken of Holman on February 17, 1988 revealed degenerative changes in Holman's spine. Dr. Mann also testified that he did not believe Holman's symptoms of dizziness, having balance problems, and ringing of the ears were at all related to his fall in February, 1988. On January 17, 1990, trial ensued and a jury awarded Holman $1,000.00 in damages. On January 26, 1990, Holman filed a motion for a new trial which the trial court overruled. This appeal follows. I. Appellant's first assignment of error states: INADEQUATE DAMAGES, APPEARING TO HAVE BEEN GIVEN UNDER THE INFLUENCE OF PASSION AND PREJUDICE. Holman contends essentially that the trial court abused its discretion by failing to grant his motion for a new trial insofar as the jury verdict was inadequate and was under the influence of passion or prejudice. Civ. R. 59(A), provides in pertinent part: (A) Grounds. A new trial may be granted to all or any of the parties and all or part of the issues upon any of the following grounds: * * * -4- (4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; The granting of a motion for a new trial rests in the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal unless there has been an abuse of discretion. See Poske v. Mergl (1959), 169 Ohio St. 70, 157 N.E.2d 344; Verbon v. Pennese (1982), 7 Ohio App. 3d 182, 454 N.E.2d 976. In an action for damages for personal injury, a jury's verdict should not be set aside unless the damages are so inadequate as to have been awarded as a result of passion or prejudice. Toledo, Columbus & Ohio River R.R. Co. v. Miller (1923), 108 Ohio St. 388, 140 N.E.2d 617; Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 495 N.E.2d 462. There is nothing in the record that leads us to believe that the damages awarded to Holman were inadequate or given under the influence of passion or prejudice rather than as a result of the sharp conflict in testimony regarding the extent of injury. As a result, we believe that the trial court's denial of Holman's motion for a new trial was proper. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE AWARD OF THE JURY OF A MERE ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. -5- Judgments supported by some competent, credible evidence going to all the essential elements of a case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578, syllabus; see Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 461 N.E.2d 1273; Schill v. General Motors Corp. (1988), 42 Ohio App. 3d 192, 195, 537 N.E.2d 713. There is competent, credible evidence indicating that not all of Holman's injuries resulted from the slip and fall accident at the restaurant. Dr. Mann indicated that the only injury Holman may have received as a result of his fall was a sprain or strain of the lower back which would have endured for no more than a matter of months and was not permanent. Dr. Mann also testified that Holman had three accidents prior to the one in question and that his examination revealed a pre-existing, degenerative spinal condition unrelated to the accident. As a result of the foregoing, we do not find the verdict against the manifest weight of the evidence. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED BY DENYING APPELLANT'S ADMISSION OF THE INTERROGATORIES TO THE JURY. Holman asserts that the trial court abused its discretion by failing to submit his proposed interrogatories to the jury. -6- Civ. R. 49(B) provides in relevant part: The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law. (Emphasis added.) Our review of the record reveals that Holman withdrew his request that the trial court submit interrogatories to the jury. The following colloquy between the trial court and counsel for Holman revealed such withdrawal: The Court: No problem. So we're striking 14 and 15, which takes away the need for interrogatories, okay. Mr. Fabian: Yes. Um-hum. (Tr. 221.) We believe Holman withdrew his request that the trial court submit interrogatories to the jury. Accordingly, the trial court's decision not to submit interrogatories was proper. Appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -7- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .