Adams v. Anderson & Middleton Lumber Co.

• Decision Date: 19 April 1923
• Docket Number: 17537.
• Citation: 124 Wash. 356,214 P. 835
• Parties: ADAMS et al. v. ANDERSON & MIDDLETON LUMBER CO.
• Court: Washington Supreme Court

214 P. 835

124 Wash. 356

ADAMS et al. v. ANDERSON & MIDDLETON LUMBER CO.

No. 17537.

Supreme Court of Washington

April 19, 1923

Department 2.

Appeal from Superior Court, Grays Harbor County; Ben Sheeks, Judge.

Action by Fred Adams, by Blanche Tabert, as guardian ad litem, and another against the Anderson & Middleton Lumber Company. Verdict for plaintiffs. From an order granting named plaintiff's motion for a new trial for inadequacy of the verdict, defendant appeals. Reversed and remanded, with directions.

Theodore B. Bruener, of Aberdeen, for appellant.

MAIN C.J.

This is an action brought by Fred Adams, a boy 9 years of age seeking to recover damages for personal injuries claimed to have been caused by negligence chargeable to the defendant. The mother of the boy joined in the same action to recover hospital and medical expenses. The answer was, in substance, a general denial with an affirmative plea of contributory negligence. The cause was tried to the court and a jury. The defendant seasonably challenged the sufficiency of the evidence to sustain a recovery. The jury regurned a verdict in favor of the boy in the sum of $665, as compensation for his injuries, and a verdict in favor of the mother in the sum of $360, the amount of the hospital and medical expenses incurred. The defendant did not move for a new trial, but moved for a judgment notwithstanding the verdict, which motion was denied. The minor boy moved for a new trial, which was granted upon the ground that the damages awarded were inadequate. The mother did not move for a new trial. The trial court entered an order granting a new trial to the minor on the ground of the inadequacy of the damages awarded by the jury. The defendant appealed from the order granting a new trial, but did not appeal from the order refusing to grant a judgment notwithstanding the verdict.

The accident happened on West Boulevard, which is a paved highway in the city of Aberdeen. The respondent Fred Adams, together with three other boys of approximately his age, was returning from school, going in an easterly direction. The respondent was walking about a foot from the pavement, on the gravel. Two of the boys were playing around a telephone pole, and the fourth one was walking behind the respondent and a little closer to the pavement. A wood truck, which was not loaded at the time, owned by the appellant, was proceeding east, and was a foot or two from the edge of the pavement alongside of which the boys were walking on the gravel. As the truck approached, the boys saw it, and one or more of them called to the driver for a ride, but the truck was not stopped, and the driver indicated his disapproval of taking them on. Just as the truck was about opposite the respondent for some reason he pitched forward and stumbled upon the edge of the pavement and fell in such a manner that his left arm was run over by the right hind wheel of the truck, and he sustained a serious injury. Upon the trial, all four of the boys testified. The respondent said that something hit him on the right hip, which caused him to pitch forward and fall but that he did not know what it was. The three other boys testified that they did not know what caused the respondent to fall, as their first notice of him was when he was in the act of falling. After this testimony was in, the court adjourned for the noon recess, and at the afternoon...