that the minor plaintiff and not the guardian is the real party in interest.
Defendant concludes his argument as follows:
"We respectfully submit that there is no earthly reason for the appointment of a guardian to bring an action in the federal courts where the parents, who have the legal duty to support the child and arrange for his or her medical care and treatment following an injury, are readily available to bring an action in the child's name.
"At a time when the federal courts are already overburdened with a flood of undisposed cases, we question the wisdom of further opening the door to a flood of additional suits which were never intended to have been permitted to be brought in our federal court system."
Defendant is not unmindful of Morris v. Bradley, D.C.E.D.Pa.1956, 139 F.Supp. 519, or of Fallat v. Gouran, 3 Cir., 1955, 220 F.2d 325, both of which cases stand foursquare against its position, but defendant maintains that the better rule is found in Martineau v. City of St. Paul, 8 Cir., 1949, 172 F.2d 777. However, our Court of Appeals in Fallat, cited above, considered the view of the 8th Circuit as expressed in Martineau and respectfully differed.This Court does likewise.
Defendant's Motion for Judgment n.o.v. is based on its argument that the record does not support any finding of negligence. Of course, it is axiomatic that in considering a motion seeking to overturn a jury's verdict, a court must ascertain that the record is void of sufficient facts or reasonable inferences therefrom to support the verdict, before it can grant the motion. Viewing the evidence in the light most favorable to plaintiff, the Court concludes that the jury would have been justified in finding (1) that defendant's truck struck the minor plaintiff while it was backing up; (2) that the driver had no clear vision of the cartway into which he was backing; (3) that the driver admittedly saw several children playing in the area; (4) that notwithstanding the availability of two helpers, the driver backed his truck without anyone guiding him or checking to see that the cartway was clear. On the assumption that these facts were found, defendant's negligence is so clear as to require neither comment nor citation.
This is not to say that defendant's Motion was deemed frivolous or was lightly considered by the Court. The minor plaintiff, who was only five years old at the time of the accident, was naturally a rather unsatisfactory witness. Her recollection of certain important details was unclear, and her description of the truck's route up to the time of the accident was somewhat confusing. Defendant's driver, on the other hand, while giving a completely different version of the accident, was understandably more positive of details than the five year old plaintiff and told in all a rather convincing story. However, the jury must have been more persuaded by the minor plaintiff and her witnesses, and it is not the function of the Court to retry the case upon defendant's Motion.
Defendant's final Motion, for New Trial, directs our attention to the size of the verdict. There can be no question that now, three years after the event, the minor plaintiff's memories of her considerable pain and suffering are largely obscured.However, the scarring above her ankle is extensive and even hideous. While it is true that there is no residual physical impairment, the emotional problems that may attend this young girl as she grows into womanhood are potentially considerable. The minor plaintiff is an extraordinarily beautiful child. This Court cannot say that in arriving at its verdict of $19,000 the jury was plainly biased or prejudiced against the defendant. Having had the opportunity to see the little girl and observe her scars, the Court must conclude that the verdict, while generous, was assuredly not excessive.
For the foregoing reasons, it is ordered that plaintiff's Motion for Judgment n.o.v. and defandant's Motions to Dismiss, for Judgment n.o.v. and for New Trial be and the same are hereby denied.
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