On plaintiff's rule to show cause why the verdict in his favor should not be set aside and a new trial granted.
For the rule, Harold Simandl.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. In this action for damages resulting from injuries claimed to have been tortiously inflicted, plaintiff applied for and secured a rule directing defendants to show cause before this court why the verdict in his favor should
not be set aside and a new trial granted upon the ground that the award was grossly inadequate. A like application previously made to the trial judge was denied. 12 N.J. Mis. R. 667; 174 A. 341.
This application, like the one addressed to the trial judge, invokes a discretionary power of the court. Supreme Court rules 122 and 123. The exercise of the power to grant a new trial, whether of the entire issue or in respect of damages only, rests in the sound discretion of the court. Rossman v. Newbon, 112 N.J.L. 261; 170 A. 230; Gormley v. Gasiorowski, 110 N.J.L. 287; 164 A. 440; Robinson v. Payne, 99 N.J.L. 135; Gaffney v. Illingsworth, 90 Id. 490; First Caldwell Oil Co. v. Hunt, 100 Id. 308, 313. It is the settled rule that a verdict will not be set aside, as against the weight of the evidence, unless the facts and circumstances clearly sustain the inference that it was the result of mistake, passion, prejudice or partiality. Boesch v. Kick, 97 Id. 92; Queen v. Jennings, 93 Id. 353; Floersch v. Donnell, 82 Id. 357. And, in the determination of this question, the conclusion of the trial judge will be accorded due consideration; for he, through observation of the witnesses, may the better judge of their credibility.
It was conceded by defendants' counsel, on the oral argument, that, assuming liability, the award is grossly inadequate compensation for the resultant damage, but it is maintained that it evidences a compromise on the issue of liability, and that, in such circumstances, a new trial of the entire issue should be had, and not one limited to the ascertainment of the quantum of damages. We are in accord with this view.
The injuries sustained by plaintiff were the result of a highway intersection collision between an automobile owned and driven by his employer, Ambruscio, in which he was a passenger, and one owned by the defendant Abeles and operated by the defendant Fechner. When the cause was moved for trial, plaintiff's counsel voluntarily entered a discontinuance as to the defendant Ambruscio, and the trial proceeded against his co-defendants. There was evidence tending
to show negligent conduct by the operators of both vehicles, and the question of whether the negligence of either, or both, was the proximate cause of plaintiff's injuries was peculiarly within the province of the jury. The evidence was sharply in conflict, and we are unable to say, upon a review of the whole case, that it clearly appears that the jury "has settled the question of liability fairly and upon sufficient evidence, so that disassociated from other questions it ought to stand, but that there has been such error in the determination of damages as requires a new trial upon that question." Robinson v. Payne, supra. As observed by Mr. Justice Trenchard, in that case, the power to confine the new trial to the question of damages is one "which ought to be exercised with ...