McCabe v. Cheseldine

BISHOP, J., pro tem.

Knocked on her back in the street as she stepped from a street-car, confined by her injuries to bed for five weeks, unable to return to work for three more weeks, suffering, to the time of trial, a period of five months, with severe headaches, coming home from work with her back aching so all the time that she could not do her share of the housework, a fracture of the twelfth rib near its union with the spine which may take months or years to get over, and is, very probably a permanent injury —with this evidence before it of what plaintiff had suffered, due to defendant’s admitted negligence, we cannot say the jury’s allowance of $3,500 was actuated by passion or prejudice or predicated on any consideration but the evidence. We may not, therefore, disturb it on the ground that it is excessive. (Ware v.

McPherson,

(1931) 213 Cal. 120 [1 Pac. (2d) 433].)

Nor do we believe that the trial court erred in denying defendant a new trial when the only other matter complained of was plaintiff’s attorney’s statement in his argument to the jury that defendant was a “potential murderer”. Granting that such an expression had no place in the case, its unfortunate presence, in the opinion of the trial court as shown by the ruling on the motion for a new trial, did not result in a miscarriage of justice, and we are not more impressed than he with its seriousness.

The judgment is affirmed. The appeal from the order denying a new trial is dismissed.

Conrey, P. J.,. and Houser, J., concurred.