Babb v. Murray

NOURSE, P. J.

In an action for personal injuries brought by a three and one-half months old child through her guardian, the jury returned a verdict for $7,500. Judgment was

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entered on the verdict, and the defendant has appealed on the single ground that the award is excessive.

The evidence of the injuries suffered by the child is not in conflict. She was riding in an automobile with her father and mother when the car collided with one operated by the defendant. At the time of the collision the child was being held on the lap of the mother; she was thrown forward against some part of the automobile causing a fracture of both femurs. She was taken to a hospital where she remained for five weeks under a physician’s care. This physician testified that, because of her age, he was unable to give the child an anesthetic, and was afraid to reset the bones by manipulation. He strapped her to a crib and fastened weights to each foot, by which process he pulled the bones of the legs into position. At the time of the trial the child was ten months old. The physician attending her testified that there was then some slight appearance of deformity where the bones had knit, but that this would disappear in four or five years. Both legs were slightly shorter than normal, but both were of equal length. He could not say that this shortening would be a permanent condition. The father and the mother of the child, and the physician called by them, testified that the child had made a complete recovery, was “all right”, and perfectly normal at the age of ten months. Evidence was offered that the physician intended to charge three hundred dollars for his services, but the record does not disclose what expenses were incurred by the parents for hospitalization of the plaintiff or what they recovered as special damages.

Bearing directly on the question of the excessiveness of the verdict is the evidence tending to show that the defendant was intoxicated; that the mother of the child was so seriously injured in the collision that she was unable to be with her daughter during the treatment in the hospital; that the father was also injured; that the defendant was arrested on the night of the collision and taken from the hospital to the county jail; and that he was driving with a woman who was not his wife and who was killed in the collision. Though much of this evidence was controverted, the plaintiff laid undue stress upon her version of it, for the obvious purpose of inflaming the minds of the jury against the defendant. We do not say that any of this evidence was improperly