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Gregg v. San Francisco & North Pacific Railroad

59 Cal. 312 Court Department One.] Docket No. 7,255 English

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p. 312
[No. 7,255.
Department One.]
ISAAC GREGG v. SAN FRANCISCO AND NORTH PACIFIC RAILROAD COMPANY.

Headnote

New Trial—Terms—Excessive Damages—SuivioiEircr oe Evidence.— The Court below made an order granting the defendant a new trial unless the plaintiff should remit a specified portion of the damages. The plaintiff declined to do so, and appealed from the order.
Bteld: The practice adopted by the Judge below has been several times approved. here, and we can not say the evidence did not justify his action.
Appeal by the- plaintiff, from an order granting a new trial in the District Court of Sonoma County. Temple, J.
The action was brought for damages for an injury to the plaintiff, alleged to have been caused by the defendant’s negligence. The jury found for the plaintiff, and assessed his damages at two thousand five hundred and fifty dollars. The order of the Court was, “ that in case the plaintiff shall, within ■ twenty days, file his consent to a modification of the judgment herein, and remitting all over and above one thousand five hundred dollars and costs, then said judgment be so modified, and the said motion for a new trial be, and the same is hereby denied; but in case no such consent be filed, then it is ordered that said motion for a new trial be, and the same is hereby granted.” Both parties appealed from the order.
Barclay Henley and H. 8. Wilson, ior Appellant.
E. 8. Lvppitt, for Respondent.

In this action, which was for damages, the jury returned a verdict in favor of the plaintiff for two thousand five hundred dollars. The Judge before whom the trial was had, was of the opinion that the damages awarded were too high, and therefore, in response to a motion for a new trial, entered an order to the effect that if the plaintiff should within twenty pays thereafter remit all damages over and above the sum of one thousand five hundred dollars and costs, and consent to a modification of the judgment accordingly, the motion for a new trial should be held denied; but that in the event no such consent be filed, the motion for a new trial should be held granted. The plaintiff declined so to consent, and appealed from the order.

The practice adopted by the Judge below has been several times approved here, and we can not say the evidence did not justify his action.

Order affirmed.