Davis v. Washburn

MOORE, P. J. In her action for damages for personal injuries resulting from the collision of her automobile with that of respondent on November 26, 1948, a verdict was returned for the sum of $19,000. Judgment having been entered thereon, the trial court granted respondent’s motion for a new trial limited to the issue of damages only, on the grounds of excessive damages and the insufficiency of the evidence to justify the amount of the verdict unless appellant should accept $5,831.36 in full satisfaction of the judgment.

A reversal of the order is demanded on the ground that, the trial court abused its discretion in granting the motion for a new trial.

All presumptions are in favor of the order and against the verdict. A new trial should be granted whenever, in the trial court’s opinion, the evidence is insufficient to justify the judgment. Granting a new trial on the ground of insufficiency of the evidence is discretionary to the extent that if any appreciable conflict exists in the evidence, such action will not be disturbed on appeal. (Lopez v. Capiti, 114 Cal.App.2d 544, 548 [250 P.2d 616]; Tice v. Kaiser Co., Inc., 102 Cal.App.2d 44, 45 [226 P.2d 624]; Ewing v. Hamada, 59 Cal.App.2d 679, 681 [139 P.2d 655].)

Appellant points out the following testimony which tends [669]to support the jury’s verdict: After receiving injuries in the collision, appellant suffered pain internally, in the abdominal area and back, groin, legs and shoulder; was under the care of her physician from the time of the accident to the time of trial in April, 1953; was confined to bed for about five months, after which she was able to work “off and on”; had worked steadily as a waitress on one job from July, 1943, until the time of the accident, averaging $50 a week; worked about five weeks at her former place of employment in November, 1949, but had to give it up on account of pain; had not worked a year previous to trial due to extreme pain aggravated by moving about. Her medical bills aggregated $585.34.

Such proof might have been deemed sufficient if respondent were now attacking the judgment on the verdict for the insufficiency of the evidence. But here a far different situation prevails. The trial court has already resolved the nature and amount of appellant’s evidence by concluding that it was not sufficient to support the amount of the verdict. Therefore, the conclusion of that court is now on trial.