Butler v. Hopewell

MUSSELL, J. This is an action for damages for personal injuries sustained by plaintiff in an intersection automobile collision. A jury returned a verdict in favor of plaintiff for the sum of $475, following which the trial court granted a new trial “on all the issues upon the ground of insufficiency of the evidence to justify the verdict in that the amount awarded is not in conformity with the evidence adduced at the trial and is inadequate.” Defendant John B. Hopewell appeals from this order, claiming that the trial court abused its discretion in granting a new trial.

On January 15, 1953, plaintiff, Mary Ann Butler, then approximately 9 years of age, and Marjorie Ann Church, another minor, were seated in the rear of a 1930 Ford pickup which was involved in an intersection accident with an automobile being driven by the defendant John B. Hopewell. As a result of this collision plaintiff’s head struck the side of the pickup and she was thrown through the air about 20 feet and “landed on her buttocks.” She was unconscious for several minutes and was taken to the Palomar Memorial Hospital in Escondido.

Dr. Flaiz, who examined plaintiff on her admission to the hospital, testified that she complained of pain in her head and back; that she exhibited some abrasions on her right thigh, and there was also a small puncture wound on her right side; that she was admitted to the hospital on January 15, 1953, and was discharged on January 24th; that the final diagnosis was concussion. The discharge sheet of the hospital record also indicated that there was a fracture of the lamina of the left fifth lumbar vertebra. However, the evidence shows that there was no fracture as stated in this record. On March 23, 1953, plaintiff was again examined at the hospital and was complaining that she had headaches and some low back ache. Again on September 29, 1953, she complained of headache when tired and on shaking or motion of her head. On March 21, 1955, she complained of pain in her left back and sacroiliac region during the previous four to six weeks. On July 9, 1956, plaintiff complained that while doing housework her back started hurting; that her left leg ached and kept her awake during the previous night. Plaintiff was then sent to the Children’s Hospital where she remained for 10 days.

Dr. Werden, who was called as a witness by the defendant, testified that he examined plaintiff in March, 1954, and that at that time he concluded that she had sustained a mild to slight degree of concussion of the brain, but that this had [108]