Martin v. Donohue

KNIGHT, J.

An automobile driven by the defendant Francis T. Donohue collided with one driven by Albert Martin

[220]

at the intersection of Flournoy Street and San Jose Avenue in Daly City, San Mateo County, as the result of which Martin was fatally injured and died the following day. He was survived by a widow and an infant son, and they joined in bringing this action for damages against Donohue, alleging that the collision was proximately caused by his negligence. Upon trial a jury returned a verdict in favor of plaintiffs for $2,500, and judgment was entered accordingly. Deeming the amount of the award grossly inadequate, plaintiffs moved for a new trial on several statutory grounds, including insufficiency of the evidence; and the trial court granted their motion, vacated those portions of the verdict and judgment determining the amount of damages, and limited the retrial to the issue of damages alone. From the orders so made defendant took this appeal, it being contended in support thereof that the trial court abused its discretion in granting a new trial, and especially in limiting the retrial to the issue of damages alone. There is no merit in the contention.

As to the law of the case, it is well settled that where the amount of damages awarded is grossly inadequate the trial court may, as' it did here, grant a new trial upon the ground of insufficiency of the evidence (20 Cal. Jur. 104), and under the authority conferred by section 657 of the Code of Civil Procedure may limit the retrial to the issue of damages alone. Among the many cases so holding are

Amore

v.

Di Resta,

125 Cal. App. 410 [13 Pac. (2d) 986] ;

Rigall

v.

Lewis,

1 Cal. App. (2d) 737 [37 Pac. (2d) 97];

Mariani

v.

Dougherty,