Sacramento Motorcyclist Prevails At Trial After Accident, Part 5 of 5

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)


In considering a motion for new trial which is based on the ground of excessive damages, the trial court is restricted to the evidence presented at trial. Stevens v. Owens-Corning Fiberglass Corp. (App. 1 Dist. 1996) 57 Cal.Rptr.2d 525, 49 Cal.App.4th 1645. Trial court must weight and consider all evidence in record, including reasonable inferences to be drawn therefrom, before granting new trial on ground of excessive or inadequate damages and if new trial is granted, it must be based upon totality of evidence, not upon any particular portion of record which can be readily pointed out. Collins v. Lucky Markets, Inc. (App. 4 Dist. 1969) 79 Cal.Rptr. 454, 274 Cal.App.2d 645. A court may not set aside verdict and grant new trial merely because judge does not agree with amount of damages. Phillips v. Lyon (App. 1930) 109 Cal.App. 264, 292 P. 711.

The assessment of damages is primarily the province of jury and secondarily the province of trial court when passing upon a motion for new trial. Gersick v. Shilling (1950) 218 P.2d 583, 97 Cal.App.2d 641; Music v. Southern Pac. Co. (1949) 204 P.2d 422, 91 Cal.App.2d 93. Trial courts may not grant new trial merely because verdict seems large or because it is larger than court sitting as jury would have given, but only when it appears that verdict was given under influence of passion or prejudice. Casaretto v. DeLucchi (1946) 174 P.2d 328, 76 Cal.App.2d 800; Kent v. Los Angeles Ry. Corp. (1939) 84 P.2d 1057, 29 Cal.App.2d 435; Los Angeles County Flood Control Dist. v. Abbot (1938) 76 P.2d 188, 24 Cal.App.2d 728; Bonner v. Los Angeles Examiner (1936) 62 P.2d 427, 17 Cal.App.2d 458; Hellman v. Los Angeles Ry. Corp. (1934) 27 P.2d 946, 135 Cal.App. 627, rehearing denied 28 P.2d 384, 135 Cal.App. 627.

In actions sounding in damages, where the law furnishes no rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb a verdict upon the ground of excessive damages, unless it is so flagrantly improper as to evince passion, prejudice, partiality, corruption, or misapprehension. Wheaton v. North Beach & M.R. Co. (1869) 36 Cal. 590; Boyce v. California Stage Co. (1864) 25 Cal. 460; Aldrich v. Palmer (1864) 24 Cal. 513.


The defendant argues that the verdict was almost certainly motivated by passion and sympathy towards the plaintiff. The defendant has not offered any evidence to support this argument nor has it offered any explanation for the passion or sympathy toward the plaintiff. The simple fact is that the defendant, who requested this jury, failed to persuade the jury that Mr. Smith was not injured in the collision. This failure by the defendant was due, in no small part, to the fact that the defendant failed to present any evidence or testimony on the issues of medical causation or damages. The failure of counsel for the defendant to prepare for or present an adequate defense does not justify a new trial.

In considering this motion for new trial, it is not for the court or the parties to substitute their evaluation of the case for the verdict of the jury. Regardless of whether this court would have award a higher or lower level of damages, the verdict of the jury should not be disturbed unless it is no flagrantly improper as to evince passion, prejudice, partiality, corruption, or misapprehension Id. Given the overwhelming evidence in support of the verdict and the near absolute lack of evidence presented by the defendant, the verdict of the jury was proper and should not be disturbed by this motion.

The motion of the defendant, accordingly, should be denied.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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