Keogh v. Maulding

DORAN, J.

In this action for damages for personal injuries, plaintiff was awarded damages by the jury in the total sum of $1,000. Plaintiff moved for a new trial, but only “as to the measure of damages alone because of the inadequacy of the verdict.” Said motion was granted. The order was as follows: “It is hereby ordered and decreed that a new trial be and is hereby granted to the plaintiff on the single issue of the measure of damages. Said order is granted on the ground of the insufficiency of the evidence to sustain the amount of the verdict.”

Defendant appeals and the sole issue involved is whether the court, in granting a new trial, on the issue of damages alone, abused it discretion.

Plaintiff while walking across the street at an intersection was struck by an automobile driven by defendant. Each attributed the accident to the fault of the other. Aside from plaintiff and defendant, there were no eyewitnesses to the accident. Several witnesses, however, who saw and talked to plaintiff immediately following or soon after the accident, testified that he was under the influence of intoxicating liquor.

Special damages amounted to the sum of $708.77, itemized as hospital, medical bills, etc. However, at the time of trial, plaintiff had not recovered from the injuries received in the accident, and it is undisputed that the injuries are permanent. The tibia and fibula had been fractured, and the tibia, which had failed to unite, required further surgery of a major character.

It is conceded by appellant that a new trial should have been granted; that if plaintiff were entitled to damages at all, the award of $1,000 was grossly inadequate. But, it is contended, the inadequacy of the damages awarded indicates that the verdict was the result of a compromise and that to retry the cause on the issue of damages alone, would be highly prejudicial.

That the trial court has the power to grant a new trial on part of the issues, there can be no question. (Code Civ. Proc., §§ 657, 662.) Indeed, such authority is not disputed. Whether the court has abused its discretion, however, in such circumstances, invariably presents an important question.

[19]

In ruling on the motion for a new trial the trial judge made the following statement: “The court is of the opinion that the evidence was overwhelming; that defendant’s negligence was the sole and proximate cause of plaintiff’s injuries; and that there was no excuse for the defendant to strike the plaintiff, who was admittedly in a marked crosswalk. It, therefore, follows that in view of plaintiff’s serious injuries that the verdict was inadequate. ...”