Rattray v. Albert

ASHBURN, J. The appellants in these consolidated cases are George Milo and Thomas Forsythe. They were injured on June 14,1953, while riding as passengers in a bus operated by defendant Albert on behalf of defendant Pacific Greyhound Lines. The bus was driven into the rear end of a truck and trailer and passengers were thrown out of their seats. A jury awarded plaintiff Milo $25,000, and plaintiff Forsythe $20,000. The proof of negligence was convincingly clear. [355]The trial judge granted defendants’ motion for a new trial in each ease, limiting the same to the issue of damages; the order specified insufficiency of the evidence to justify the verdict as the ground of the ruling.

No claim is made that this was not a proper occasion for a limited new trial if any new trial is to be had. (Clifford v. Ruocco, 39 Cal.2d 327, 329 [246 P.2d 651].) Appellants’ contention is that the evidence is in such shape that it was an abuse of discretion to grant a new trial.

The rules governing review of an order granting a new trial for insufficiency of the evidence are stated in Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358 [170 P.2d 465] : “. . . The trial court in considering a motion for new trial is not bound by a conflict in the evidence, and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party. [Citations.] The only conflict may be the opposing inferences deducible from uncontradicted probative facts. In such case the trial court may draw inferences opposed to those accepted by the jury, and may thus resolve the conflicting inferences in favor of the moving party, for ‘It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.’ [Citations.] ”

Concerning an order granting the motion upon the ground of excessive damages (which is essentially an insufficiency of the evidence (Sinz v. Owens, 33 Cal.2d 749, 760-761 [205 P.2d 3, 8 A.L.R.2d 757])), it is said in Strosk v. Howard Terminal Co., 129 Cal.App.2d 797, 802 [277 P.2d 828] :

“ ‘Whatever may be the rule which should govern the trial judge, it is certain that when his action in granting a new trial on the ground of excessive damages, or requiring a reduction of the amount as the condition of denying one, comes to be reviewed on appeal, his order will not be reversed unless it plainly appears that he abused his discretion; and the cases teach that when there is material conflict of evidence regarding the extent of damage the imputation of such abuse is repelled, the same as if the ground of the order were insufficiency of the evidence to justify the verdict.’ (Doolin v. Omnibus Cable Co., 125 Cal. 141, 144-145 [57 P. 774], ...”