Harper v. Superior Air Parts, Inc.

WOOD (Parker), J.

Appeal by defendant from an order granting plaintiff’s motion for a new trial. The action was for damages for personal injuries allegedly resulting from negligence of defendant DeLange while he was operating a truck owned by his employer, the defendant corporation. Plaintiff dismissed the action as to defendant DeLange. Trial was by jury, and the verdict was for plaintiff for $12,500. Plaintiff made a motion for a new trial on the ground that “inadequate damages” were given under the influence of passion or prejudice ; and on all the grounds stated in section 657 of the Code of Civil Procedure, except the ground of excessive damages. The court granted said motion “upon all issues” on the grounds of inadequate damages awarded under the influence of passion and prejudice, insufficiency of the evidence to sustain the verdict, and that the verdict is against the law.

Appellant contends that the court, in granting a new trial on the ground of inadequate damages, abused its discretion. Appellant argues that the evidence establishes that DeLange was not negligent, that plaintiff was negligent as a matter of law, that plaintiff’s conduct was the sole and proximate cause of the accident and that the damages awarded were adequate.

Section 657 of the Code of Civil Procedure, which states the grounds upon which a motion for a new trial may be granted, does not expressly include the alleged ground of “inadequacy of damages.” A new trial may be granted upon the ground of insufficiency of the evidence for the reason that the damages awarded are inadequate.

(Franklin

v.

Bettencourt,

16 Cal.App.2d 511, 514 [60 P.2d 1017].) Upon a motion for a new trial based upon the contention that damages are inadequate the trial court should review the evidence, not only with respect to the issue of damages but also with respect to the issue of liability. (See

Bakurjian

v.

Pugh,

4 Cal.App.2d 450, 454 [41 P.2d 175].)

[93]

Plaintiff testified that on March 25, 1949, he was driving a tractor with a semitrailer (referred to as a truck); he was proceeding north on Alameda Street, and while he was shifting gears the gears stuck; he coasted over to the curb, and came to a stop against the curb and about 200 feet south of Olympic Boulevard; previously when gears on other trucks were that way, he found that by getting under the truck he could pry the shifting lever back into neutral position with a metal bar; he thought there was a bar with the tools in the sleeper cab (at the rear of the driver’s cab); there was a door on each side of the sleeper cab—one on the left or street side and the other on the right side; the tools were customarily kept on the left side of the cab; plaintiff got out of the truck on the left or street side and went to the sleeper cab to search for the bar; he opened the left door of the cab, but there were no tools on that side of the cab; as he was closing the door, he glanced over his shoulder and saw a truck (defendant’s) approaching; it was at the back end of plaintiff’s truck—“just coming alongside of it”-—about 25 feet from where plaintiff was standing and about 6 inches from the left side of plaintiff’s trailer; plaintiff slammed the cab door, and he took three or four rapid steps toward the front of his truck—with his clothes almost brushing his truck; the hood of defendant’s truck went past him and then something struck him on the head, back and side; when he “came to” he was lying on the street about 6 feet from the front of his truck.