Adams v. Pacific Motor Trucking Co.

DOOLING, Acting P. J.

Plaintiffs Adams and McCarthy brought separate actions for personal injuries received when, on February 3, 1956, a pielmp truck driven by Adams with McCarthy as a passenger was struck in the rear by defendant’s vehicle, a three axle diesel tractor.

Defendant admitted liability for injuries, if any, but denied that either appellant suffered damage. The cases were consolidated for trial and the jury returned a verdict in favor of Adams, assessing damages at $1,200. They returned a verdict in favor of defendant and against McCarthy. Plaintiffs’ motion for a new trial was denied and they appeal from the judgment.

It is asserted that the trial court abused its discretion in denying the motion for a new trial, and that the judgments were contrary to the evidence.

As to appellant Adams it is asserted that the uncontradicted evidence established that he had suffered a wage loss of $1,200 and that he had incurred medical expenses in the sum of $568.72. McCarthy’s testimony as well as that of his doctor is cited concerning his injuries, pain and suffering. Several cases are cited for the proposition that where the damages awarded are clearly inadequate, the failure to grant a new trial constitutes a clear abuse of discretion.

(Bencich

v.

Market Street Ry. Co.,

20 Cal.App.2d 518 [67 P.2d 398];

Torr

v.

United Railroads,

187 Cal. 505 [202 P. 671];

Phillips

v.

Lyon,

109 Cal.App. 264 [292 P. 711] ;

Donnatin

v.

Union Hardware & M. Co.,

38 Cal.App. 8 [175 P. 26, 177 P. 845].)

As stated in

Gersick

v.

Shilling,

97 Cal.App.2d 641, at page 645 [218 P.2d 583] : “The principles applicable to such an appeal are well settled. The question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion