The plaintiffs brought this action to recover for personal injuries sustained by Warren Cyrus, who will be referred to herein as the plaintiff, when his pickup truck was struck in the rear by an automobile driven by the defendant Gary A. Martin. The piсkup truck was disabled and was being pushed along Trent Avenue, in Spokane, by the plaintiff. It was about 2:30 a.m., and therе was evidence tending to show that the truck was not lighted at the time of the collision.
The jury returned a verdict for the plaintiff which the trial court found to be inadequate. A new trial was ordered on the issue of damages only, and the defendants have appealed.
The trial court was of the opinion that the jury must have failеd to take into account certain evidence concerning the plaintiff’s loss of earnings; and that, сonsequently, substantial justice had not been done. The court reasoned that, since only $500 in general damages was awarded, and there was no dispute that the plaintiff’s pre-existing back condition had been aggrаvated by the jolt received in the accident, the award obviously did not include any substantial amount for loss of earnings. The trial court observed that there had been uncontradicted evidence that the plaintiff had lost the benefit of three contracts for labor, as a result of his injuries.
It is not claimed by the defendants that thе issue of lost earnings was not properly before the jury. They rest their contention that the court abused its disсretion on their theory that the jury was entitled to reject the uncontra-dicted testimony of the plaintiff and his witnеsses. The *812 trial court, however, felt that the jury had not simply rejected the testimony but had mistakenly ignored it.
The granting оf a motion for a new trial is within the discretion of the trial court, and its order will not be set aside in the absencе of a showing of an abuse of that discretion, except where the order is predicated on rulings as to the law.
Coleman v. George,
62 Wn. (2d) 840,
The defendants cite the case of
State v. McKenzie,
56 Wn. (2d) 897,
Wе do not have in this case an order entered by a trial judge who merely disagreed with the jury’s findings on the amount of dаmages. The trial court in this case was convinced that the jury had neglected or refused to consider any of the evidence on one element of damages and, thus, had arrived at an erroneous verdict. Thе court was of the opinion that the jury could not reasonably reject all of the evidence cоncerning lost earnings. We are not prepared to say, as a matter of law, that the jury could reasоnably disregard all of this evidence, and consequently we cannot hold that the trial court abused its discretion in granting a new trial.
It is also contended by the defendants that the trial court erred in limiting the new trial to the issue of dаmages. There is merit in this contention. It is proper 'to limit a new trial to the issue of damages where liability is clеarly shown, but where the inadequacy of damages is coupled with a close case on the issue of liаbility, justice requires a new trial upon the entire case.
Zerr v. Spokane City
*813
Lines, Inc.,
58 Wn. (2d) 196,
Error is assigned to the giving of an instruction on the first phase of the doctrine of “last clear chance.” Instruction No. 15 reads in pertinent part:
“If the defendant actually saw the automobile of the plaintiff in the street ahead of him and should have appreciated the dangеr, if any, of the situation, but failed to exercise reasonable care to avoid the collision, such failure makes the defendant liable in this action, ...”
According to the defendants, there was no evidence from which the jury could infer that the defendant driver actually saw the plaintiff’s vehicle in time to avoid the collisiоn. We find this contention supported by the record. As we said in
Glasper v. Westbo,
59 Wn. (2d) 596,
The defendants also urge that the trial court committed error in refusing their proposed instruction concerning intoxication. They cite no authority supporting this instruction as a correct statement of the applicable law and have thus failed to sustain the burden of showing that the trial court’s ruling was erroneous.
The plaintiff likewise has assigned errоr to certain rulings of the trial court which he contends should not be repeated on a retrial of the case, but has failed to support these assignments with legal arguments. Since they have not been seriously urged, thеy will not be considered.
The order granting a new trial is affirmed. Insofar as the order limits the new trial to the issue of damages, it is reversed, and the cause is remanded for a new trial on all of the issues.
Ott, C. J., Hill and Hale, JJ., and Barnett, J. Pro Tern., concur.