Kent v. Los Angeles Railway Corp.

CRAIL, P. J.

This is an appeal from an order granting a motion for a new trial. The jury bad returned a verdict in the sum of $25,436, upon which judgment had been entered. The court granted the motion upon the ground, among others, of “excessive damages given under the influence of passion”.

The plaintiff, a blind girl seventeen years of age, was a passenger of the defendant and stepped down from the rear end of the car and into an open switch box, three and three-quarter inches wide and more than five inches in depth. The plaintiff was injured, the bones of one of her legs being broken. The jury found that the defendant was negligent in maintaining the switch box, and granted judgment in the large sum already indicated.

In the case of

Bonner

v.

Los Angeles Examiner,

17 Cal. App. (2d) 458, at 461 and 462 [62 Pac. (2d) 427], where the same question was involved, this court said: “With regard to the granting of a new trial for ‘excessive damages appearing to have been given under the influence of passion or prejudice’, the rule in the trial court is that it may not grant such an order merely because the verdict seems large or because it is larger than the court sitting as a jury would have given but only when it appears that it was given under the influence of passion or prejudice. On appeal from such an order, however, an appellate court will not disturb the order if there is a reasonable or fairly debatable justification for it. It has been said and often quoted ‘that the trial court should be vigilant to set aside verdicts where there is reason to believe that passion, prejudice or sympathy has influenced the jury to give more than the facts reasonably warrant. No definite rule can be announced as to when a verdict is or is not so excessive within these rules, but it is settled that an order granting a new trial for excessive damages will not be disturbed if there is a reasonable or fairly debatable justification therefor. Such an order implies that the motion was

[437]

granted upon a consideration of the insufficiency of the evidence to support the verdict. ’ (20 Cal. Jur. 100.) In the same connection it has been said that ‘practically, the trial court must bear the whole responsibility in every ease’.