Frost v. Southern Pacific Co.

SHINN, P. J.

Plaintiffs Isaac Frost and Eva Frost are husband and wife. They brought suit against Southern Pacific Company for damages resulting from "injuries to Mrs. Frost through the negligence of the defendant. In a jury trial verdict was in favor of Mrs. Frost for $15,000 and in favor of Mr. Frost for $150. Defendant moved for a new trial upon all statutory grounds. In support of the motion defendant filed an affidavit of one Arentz in which it was stated that he had observed the activities of Mrs. Frost

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on a number of days after her victory in the case. Her actions, as observed, indicated a marked improvement over the condition she allegedly had described at the trial, which rendered her unable to move around unassisted or to perform her household duties and caused her to walk with a pronounced limp. A counteraffidavit was filed by the attorney for plaintiffs but it did not relate to any of Mrs. Frost’s activities after the trial. Plaintiffs made a motion to strike the affidavit of Arentz and the motion was denied. The court granted defendant’s motion for a new trial “on the matter of damages only on the ground of insufficiency of evidence to sustain the verdict.” Plaintiffs appeal from the order and also notice an appeal from the unappealable order refusing to strike out Arentz’s affidavit.

The record on appeal consists of the clerk’s transcript and a settled statement under certificate of the trial judge. The statement contains two pages. It recites that plaintiffs were occupying a “living outfit car” belonging to defendant while Mr. Frost was employed by defendant as a carpenter. The outfit ear was standing on a spur track of defendant and was occupied by plaintiffs with defendant’s permission. While Mrs. Frost was occupying the car “something struck the car from which she was thrown to the floor.” The statement recites the institution of the action, the trial, the verdict and judgment, the motion for new trial, proceedings thereon, the ruling of the court and the taking of an appeal by plaintiffs. It does not mention any evidence with respect to injuries sustained by Mrs. Frost other than the fact that she was thrown to the floor when something struck the car.

Plaintiffs assail the order granting the new trial upon the ground that it was error to refuse to strike out Arentz’s affidavit and to consider it on the motion. Defendant maintains that the affidavit was properly submitted for the court’s consideration on the motion as newly discovered evidence and further that the order granting a new trial upon the ground of insufficiency of the evidence to justify the verdict is not subject to review in the absence of any record of the evidence received at the trial with respect to the issue of damages.