Barnett v. Keilig

O’DONNELL, J. pro tem.* This is an action for damages for personal injuries sustained by plaintiff when she was struck by defendant's automobile while walking across a street intersection in the city of San Francisco. The jury returned a verdict in plaintiff’s favor in the sum of $1,500. After judgment was entered on the verdict, plaintiff moved for a new trial on the ground, among others, of the insufficiency of the evidence to justify the verdict. The trial judge denied the motion and this appeal from the judgment ensued.

[179]Plaintiff’s sole contention on this appeal is that the verdict of the jury is so grossly inadequate as to require reversal of the judgment. We shall briefly review the evidence relevant to that contention.

Following the accident, plaintiff was hospitalized for two weeks. Thereafter, she was confined to her bed in her home, in the care of a practical nurse, for about a month. Dr. Leeds, who had been plaintiff’s physician for some years and who had ministered to her following the accident, diagnosed plaintiff’s injuries as follows: A subcutaneous hematoma on the back of the head; bruises on the elbow and buttock; an abrasion of the knee; and, cerebral concussion. Plaintiff also testified that she has been nervous and emotionally upset ever since the accident.

The hematoma cleared within five days of the accident. The bruises and abrasions were completely gone in two weeks’ time. Dr. Leeds testified that his diagnosis of cerebral concussion was predicated on plaintiff’s statement to him that she had been rendered unconscious by the impact of the automobile. However, there was testimony of a witness to the accident that plaintiff never lost consciousness. Moreover, Dr. Lawrence Custer, called as a witness by defendant, testified that a cerebral concussion, as distinguished from a cerebral contusion and cerebral laceration, does not result in damage to the brain. His examination of plaintiff revealed no brain damage. Dr. Knox Finley, also called by defendant, testified he examined plaintiff and he found no evidence of damage to the skull, brain, or nervous system. With respect to plaintiff’s nervous and emotional condition, her medical history prior to the date of the accident, as revealed both from the testimony of Dr. Leeds and from hospital records, discloses that such condition has existed as far back as the year 1944. While plaintiff’s nervous condition was undoubtedly aggravated by the experience of being knocked to the pavement by an automobile, still, the jury might have concluded that the aggravated condition was transient. Dr. Leeds testified on cross-examination that plaintiff’s present nervous and emotionally upset condition might well date back many years.