Mariani v. Dougherty

46 Cal. 26 | Cal. | 1873

By the Court:

This action was brought to recover damages from the defendant for causing, by his wrongful act, neglect, and default, the death of the plaintiff’s intestate. The plaintiff recovered a verdict and judgment for two hundred dollars; and, upon his motion, the Court granted a new trial. The appeal is from the order granting the new trial.

Various reasons were assigned why a new trial should be had; but the Court granted it upon the ground of the insufficiency of the evidence to justify the verdict. The guilt and liability of the defendant being established by the verdict, it seemed to the Court below “a mockery of justice to assess such an insignificant sum as a just and fair compensation, or for damages, resulting from the reckless taking of human life.”

A new trial may be granted when the damages are too small as well as when they are too large. (Hall v. Bark Emily Banning, 33 Cal. 522; McDonald v. Walter, 40 N. Y. 551.)

It appears from the record that the plaintiff’s intestate was a house painter and paper hanger by trade, about fifty-six or fifty-seven years of age, industrious and temperate; that he found employment about three fourths of the time, and made, when at work, from four to seven dollars per day; that he had four sons and one daughter, all of whom had reached the age of majority, except one, and he was ten or eleven years of age, living with and dependent upon his father for support.

In view of these facts, we cannot say that the Court abused its discretion in holding, if the defendant was liable at all, that the damages awarded were altogether disproportionate to the injury received.

Order affirmed.