Ross v. Prevost

DEVINE, J. Plaintiff, a minor who prosecuted the action by her guardian ad litem, was awarded a verdict in the sum of $400 on her complaint for personal injuries and expenses, and she appeals on the ground of inadequacy of damages. The trial court denied a motion for new trial, which was made on the same ground.

Plaintiff was injured while she was riding in defendant’s automobile, which overturned. Her action is based on alleged [571]intoxication and wilful misconduct, if she were found to be a guest, and negligence if she were found to be an involuntary passenger because of inability on her part to return home except by riding with defendant, who had taken her, together with his own family, on a picnic. There is ample evidence to support a verdict for plaintiff.

Special damages are claimed by appellant to have been established at $364.25, leaving but $35.75 as compensation for her injuries. Respondent contends that special damages could have been found by the jury to have been $192.26, leaving $207.74 as restitution for injuries.

Plaintiff’s injuries are described below, but for the purpose of examining the items of expense, it may be said at this point that the injuries consisted of a fractured clavicle, a lump on the forehead, a scar on the knee and various abrasions. Plaintiff’s family belonged to a Kaiser Hospital Plan, and her father brought her to a hospital in Walnut Creek immediately after the accident. The physician who treated her was not produced as a witness, but the hospital records were admitted in evidence, and these show that X-rays were taken, the fracture was reduced and a figure-eight bandage was applied to immobilize it, the abrasions were cleaned and a tetanus injection was given, all for a bill of $76.25, which was a billing on a private patient basis. The physician asked Mr. Ross if he wished a specialist, and Mr. Ross, although he knew Kaiser had specialists on its staff, replied that he would call his own specialist. He testified that he was not satisfied with the "way they put the cast on her arm at Kaiser,” but the specialist engaged by him did not testify that there was anything wrong with what had been done, and, indeed, testified it was a usual type of dressing, mainly with children. The orthopedic specialist found the alignment good, but decided that a figure-eight with plaster applied over it should be employed for alleviation of pain, and to prevent deformity in the shape of a collarbone lump, a procedure sometimes necessary with an older or larger child, and this remained for a few weeks.