Ogando v. Carquinez Grammar School District

KNIGHT, J.

The superior court granted plaintiff’s motion for a new trial upon the ground of insufficiency of the evidence, and the defendants appeal. The action is for damages, and was brought against the Carquinez Grammar School District and its board of trustees by the father of Aileen Ogando, a ten-year-old child, who died as the result of injuries received while attending school.

Defendants’ first contention is that under the provisions of chapter 1168 of the Statutes of 1931 (p. 2476) it was necessary for plaintiff as a prerequisite to the commencement of the action to file a verified claim for damages with the clerk of the school district within ninety days after the

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accident, which admittedly he did not do, and that therefore the trial court should have granted defendants’ motion for nonsuit. It has been held, however, that the requirements of said statute (as it stood prior to its amendment in 1937 [Stats. 1937, p. 585]) were restricted to the class of eases embraced within its title, namely, to cases founded on the alleged negligence of officers and employees of public and gtotm'-public corporations in connection with the defective or dangerous condition of public streets, highways, bridges, buildings, works or property of such public or gtocm-public corporations; and that cases based on general acts of negligence of such officers and employees did not fall within the scope of said statute.

(Jackson

v.

City of Santa Monica,

13 Cal. App. (2d) 376 [57 Pac. (2d) 226];

Kenney

v.

Antioch Live Oak School Dist.,

18 Cal. App. (2d) 226 [63 Pac. (2d) 1143].) And here the allegations of the complaint as well as the evidence adduced at the trial show that the present action is of the latter class. The trial court properly held, therefore, that the action was not barred by the provisions of said statute.

Defendants’ second and final contention is that in any event the” evidence would be insufficient as a matter of law to sustain a verdict in plaintiff’s favor, and that therefore the trial court erred in granting a new trial. There is no merit in the contention. The granting of or refusal to grant a new trial rests very largely within the discretion of the trial court—a discretion which is extremely wide; and its ruling will not be disturbed, especially where, as here, a new trial has been granted on the insufficiency of the evidence, unless there is a clear and affirmative showing of a gross, manifest or unmistakable abuse of the discretion it is called upon to exercise. (20 Cal. Jur., pp. 27-31.) In other words, it is only in rare instances and on very strong grounds that the reviewing court will set aside an order granting a new trial.