Mendoza v. Rudolf

MUSSELL, J.

This is an action for personal injuries and property damage resulting from an intersection collision between two automobiles, a Ford coupe being operated by defendant Henry Rudolf (and owned by his father) and an Oldsmobile owned and operated by plaintiff Ruben Mendoza.

Plaintiff Henry Mendoza, a minor, 17 years of age, was riding in the front seat of the Oldsmobile with his brother, Ruben, on September 3, 1954, at about 7 a. m., when the accident happened and both plaintiffs sustained personal injuries. A jury trial was had in which a verdict was returned for plaintiffs, assessing the damages as $735.90 for Ruben Mendoza and $385.90 for Henry Mendoza. Ruben moved for a new trial on the statutory grounds and inadequacy of the damages awarded, and Henry moved for a new trial on the sole ground of the insufficiency of the evidence to justify the verdict in that the amount awarded by the jury was not in conformity with the evidence and was inadequate. Ruben’s motion was granted as to all issues in the case and Henry’s was granted on the issue of damages alone. Both motions were granted on the ground of the insufficiency of the evidence to justify the verdict. The cause was then tried without a jury and the court ordered judgment against the defendants in favor of the plaintiffs. Ruben was awarded $939 special damages and general damages of $7,500. Henry was awarded special damages of $712.90 and general damages in the sum of $6,250. These judgments were limited as to defendant Henry Adam Rudolf to $5,250

[635]

for Ruben and $5,000 for Henry pursuant to section 402, subdivision (b) of the Vehicle Code.

Defendants appeal from the judgment and their first contention is that the amount of general damages allowed is so grossly disproportionate to any compensation which could be reasonably awarded as to shock the sense of justice.

The record shows that plaintiff Ruben Mendoza was taken to the Fresno County Hospital immediately after the accident. It was found he was suffering from cerebral concussion, multiple contusions, fracture of the tenth and eleventh ribs on the right side and contusion of the right kidney. He was hospitalized for a period of 13 days and at the time of his discharge on September 16, 1954, he had not recovered from his injuries. He testified at the trial that he had a cut and lump on the right side of his head behind the ear and still had the mark there; that he was suffering from loss of memory; that his kidney and ribs bothered him all the time, and he had shooting pains in his back; that he was unable to hold any position because his kidney bothered him; that he had to get up four or five times during the night, and had dizzy spells. The record shows that during the course of his treatment for contusion of the right kidney it became necessary for a catheter to be inserted in his bladder and that apparently this painful treatment was necessary for a period of some 10 days. In addition, an examination was conducted on him by the use of a cystoscope. When questioned about this treatment and examination he “broke down in tears.”