Wardrop v. City of Manhattan Beach

WHITE, P. J.

Plaintiffs instituted this action against defendants to recover damages for crippling injuries sustained by minor plaintiff Eva Jane Wardrop, in contracting bulbar poliomyelitis from fecally contaminated waters allegedly contained in an open sump in the vicinity of plaintiffs’ home. Prior to trial, the action was dismissed as to all defendants except Harry Barron, Frank A. Barso doing business as B & B Homes, a copartnership, and Roy Baker.

The complaint contains six causes of action, the first three of which are on behalf of minor plaintiff, and the first of which alleges the existence of a nuisance occasioned by the mere maintenance of the aforesaid sump. The second alleges a trespass by the intentional pumping of the sump water into the backyard of plaintiffs’ home where, it is alleged, the minor plaintiff came into direct contact with said water. The third cause of action is predicated on the alleged negligent maintenance of the sump and its contents.

The first, second and third cause of action on behalf of the adult plaintiffs, parents of the minor plaintiff, are based, respectively, on the three causes of action brought on behalf of the minor plaintiff, and by them, the adult plaintiffs seek to recover special damages for hospital and medical expenses incurred for the care of minor plaintiff.

At the outset of the trial the first cause of action on behalf

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of all plaintiffs, founded on a claimed nuisance by reason of the mere maintenance of the sump, was dismissed.

The cause proceeded to trial before a jury. Upon conclusion of plaintiffs’ case, the court granted a motion for nonsuit as to plaintiffs’ third cause of action, based on negligence. A similar motion by defendants as to plaintiffs’ second cause of action (trespass by the intentional pumping of the sump water into the backyard of plaintiffs’ home) was denied, and when both sides had rested their case, the court denied defendants’ motion for a directed verdict as to the second cause of action.

The jury returned verdicts in favor of the minor plaintiff in the amount of $54,000, and in favor of the adult plaintiffs, in the sum of $12,530.49. Judgment on the verdicts was accordingly entered. Thereafter, defendants filed written notice of motion for judgment notwithstanding the verdict (alternative form under Code Civ. Proc., §§ 629 and 659), and defendants also filed their notice of intention to move for a new trial. The court granted the motion for judgment notwithstanding the verdict. As to the motion for a new trial, the minute order thereon reads: “No action is taken by the Court on Defendants’ Motion for New Trial herein.” The trial judge stated: “I am going to say this, counsel. I am going to bring an end to this lawsuit. If the Supreme Court holds that there is sufficient evidence to take this case and uphold the verdict, then I am going to go along with the jury. So I will not make any order granting the motion for new trial, if the order non obstante is reversed. If the Supreme Court holds that the evidence is sufficient under this record to take the case to the jury, then I am going to hold that the jury found properly. In my opinion, the record on proximate cause is devoid of evidence, for the reasons I have stated, but if my reasoning is wrong, then the jurors’ verdict is correct.”