Warner v. Urbach

[6]

MUSSELL, J.

This is an intersection accident case in which a jury returned a verdict in favor of plaintiff in the sum of $615. Judgment was entered in accordance with the verdict and plaintiff appealed from “that portion only of the judgment . . . awarding inadequate damages to plaintiff.” Plaintiff’s injuries included a compression fracture of the third cervical vertebra and a dislocation of the second cervical vertebra on the third. He was in the hospital for 30 days, in a cast for three months, and was required to wear a brace for an additional two months. His special damages included $350 for services of a physician, $250 for hospital expenses, and an ambulance charge of $9.00. The jury awarded plaintiff all of these special damages but did not award him anything for general damages. No motion for a new trial was made by the plaintiff. Since he failed to present the question of inadequacy of damages to the trial court, it cannot be raised for the first time on appeal. Plaintiff has waived his right to have the question of the inadequacy of damages considered and determined by this court.

(Alexander

v.

McDonald,

86 Cal.App.2d 670, 671 [195 P.2d 24].

Defendant appeals from “the whole of said judgment” and states his position on appeal to be (1) That plaintiff was guilty of contributory negligence as a matter of law and judgment should be ordered for defendant; (2) If it be determined that plaintiff was not guilty of contributory negligence as a matter of law, then the judgment for plaintiff for $615 should be affirmed. Defendant then “expressly consents to its affirmance for $615.00, in the event that judgment is not ordered for defendant under point one above.”

Under the facts shown by the record we cannot here hold that, plaintiff was guilty of contributory negligence as a matter of law. The accident occurred in the intersection of Scott Road and Osborn Road, about 1% miles east of Tulelake in Siskiyou County. Scott Road runs north and south and Osborn Road runs east and west. Level fields surround the intersection on all sides and vegetation on these fields was not over 2 feet high at the time of the accident. Plaintiff, who was a carpenter, was going to work on the morning of September 11, 1951, and was driving his G.M.C. pickup truck south on Scott Road. It was a clear day and the visibility was good in all directions. Plaintiff testified that as he approached the intersection of Scott and Osborn Roads, he was traveling about 30 miles per hour; that “I