180 A. 685 | N.J. | 1935
This is a certiorari directed to a rule entered in a District Court, awarding to plaintiff a new trial on damages only in an automobile collision case. Plaintiff had a rule to show cause for a new trial based on inadequacy of damages, followed after argument by the rule absolute here particularly attacked, which directs that the rule to show cause "be made absolute and a new trial granted as to damages only." The reasons assigned under the present writ are (1) that only a rule for new trial generally can be supported *380
by the rule to show cause; (2) lack of jurisdiction to make a rule to show cause as to damages only (no such rule was made); (3) lack of jurisdiction to award a new trial as to damages only; (4) substantially reiterates No. 1. The principal attack is on the jurisdiction of the District Court in the premises, and necessarily so, because while this court has constitutional power to supervise generally by certiorari the proceedings in District Courts (Green v. Heritage,
The power of the District Court to award a new trial in an ordinary action at law is expressly conferred by section 17 of the District Court act. "In every case tried in any of said courts, the judge may, if he sees fit, order a new trial to be had upon such terms as he shall think reasonable * * *." P.L.
1898 (at p. 559); Comp. Stat., p. 1959. This has been held to include the power to require a plaintiff, on defendant's rule, to elect whether to accept a reduced verdict or go to trial again.Dunning v. Reid,
It is quite clear, however, that the large discretion granted to a trial court in imposing terms should be most carefully *381
and cautiously exercised, particularly in cases of limitation to damages only and in favor of a plaintiff claiming that they are inadequate. The proof of liability should be exceptionally clear in order to justify the restriction of a new trial to no more than a reassessment of damages; and particularly because the granting of a new trial is in general not subject to appeal or other review. Another consideration is that a jury, though not satisfied of plaintiff's right to recover, may still misguidedly and illogically bring in a nominal or insignificant verdict for the plaintiff. This was the situation in the rather extreme case of Miller v. Delaware, Lackawanna and Western Railroad Co.,
As to the suggestion that the evidence as to damages may be different at a second trial, the answer is that this is incidental to any issue in any new trial. See 4 Blk. 391, c. Any practicing lawyer will endeavor to strengthen his case on a second trial by additional evidence. Indeed, the award of new trials for newly discovered evidence is necessarily predicated on other evidence than that at the first trial.
The writ will be dismissed, with costs. *382