Silvester v. Scanlan

THE COURT.

Action for damages for personal injuries. A verdict was rendered for plaintiff in the sum of $12,500. A motion for a new trial was made and denied. From the judgment entered on the verdict this appeal is taken.

[108]

The facts surrounding the case are without- dispute. On May 29, 1929, plaintiff was walking on the sidewalk on Washington Street, in Oakland, in front of a building owned by defendants Agnes E. McMullen, Ida O. Jones and G. H. Jones. The building was being painted by defendants Scanlan and Miller. At this time a portion of the gutter was dislodged from the roof by one of the painters and it fell to the street, striking plaintiff a glancing blow. The portion of the gutter that fell was hollowed out so that it was an inch or so in thickness. Plaintiff was dazed or rendered unconscious by the blow and was taken to the Central Emergency Hospital. The surgeon in charge found a slight abrasion on the right side of her neck and another slight abrasion over the right collar-bone. A little iodine was applied to the abrasions and plaintiff left the hospital. Thereafter she brought this action for damages. At the conclusion of the trial a jury rendered a verdict in the sum of $10,000 against all the defendants. About three weeks thereafter private investigators hired by defendants made the acquaintance of plaintiff and succeeded in having her pose for moving pictures. These pictures of plaintiff portrayed a vigorous, well-co-ordinated person acting like any normal person would act, without any evidence of neurosis from which she claimed at the trial to be suffering. The pictures were made the basis of a motion for a new trial, it being claimed that plaintiff had suffered no damage, but was malingering and that- her claim of injuries was without merit and dishonest. The court granted the motion on the question of damages alone. A second trial was had, resulting in a verdict for plaintiff in the sum of $12,500. It is from the judgment based thereon that the present appeal is taken.

The plaintiff, as part of her case, introduced evidence to show that she was at times unable to do her housework or practically any work at all; that she suffered from fainting spells and had to be put to bed and on occasions remained there for three or four days at a time; that she was compelled to recline on a couch at frequent intervals' during the day and could not move her head backward or forward without becoming dizzy; that her sight was. blurred; that she could not walk any distance unassisted, and could not completely dress or undress herself. There was also medical