Phillips v. Lyon

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

The plaintiff Jack Phillips by his guardian has appealed from that portion of a judgment which was rendered in his favor in compensation of personal injuries sustained by him in an automobile collision accident. It is contended this portion of the judgment, which is for $3,000, is grossly inadequate to compensate him for the injuries sustained.

At 8 o’clock on the morning of June 1, 1928, the plaintiff’s minor son Jack, aged fifteen years, was riding as a passenger

[266]

with the defendant Clifford Woodard, Jr., in his father’s Studebaker machine. They were traveling westerly on Ninth Avenue in the city of Sacramento. At the same time, Alden C. King, a young man who was employed by the firm of Lyon & Darwin, hardware merchants of the same city, was driving their Ford truck in the course of his employment northerly along Thirty-third • Street. Both machines were traveling along the proper side of their respective streets. Some shade trees and dwelling-houses deprived both drivers of a clear view of the intersecting streets which they were approaching. Alden King testified he was traveling only 15 miles an hour and that he actually entered upon the intersection of these streets before he saw the Woodard car approaching. Jack Phillips and Clifford Woodard, Jr., each testified they were traveling at a rate of speed not to exceed 20 or 25 miles an hour and that he did not see the Ford truck until they reached a point 50 or 60 feet from the intersection.' A collision occurred. There is a conflict of evidence as to the cause and manner of the contact of the machines. The driver of each car insists his automobile was struck on the side by the other machine. The Ford truck appears to have been shunted across the street, landing on an adjoining lawn against a dwelling-house. The Ford, however, maintained an upright position -upon its wheels. King, the driver, was dazed but uninjured. The Studebaker machine shot diagonally across the street and overturned at the curbing. Jack Phillips was found beneath the wreck of the machine, unconscious and seriously injured. He was taken to the county hospital where he remained under the care of a physician for several months. He sustained a fracture of the twelfth vertebra of the spinal column. Both bones of the right forearm were shattered near the wrist. It is insisted that he is permanently injured. A suit for damages was commenced against the driver of the Ford truck and his parents. The hardware firm was made a party defendant, as were also the individual members of the copartnership. The defendants answered separately, denying the allegations of negligence with which they were charged and affirmatively asserting that the driver of the Studebaker machine was guilty of contributory negligence. The cause was tried before a jury. A verdict was rendered against each of the defendants, except L. D. Lyon and J. H. Darwin as in