Cerrato v. Miller

163 N.E. 251, 264 Mass. 533, 1928 Mass. LEXIS 1324

• Court: Massachusetts Supreme Judicial Court
• Decided: October 8, 1928
• Status: Published

Opinion

Wait, J.

The only exception is to refusal of the judge to grant the plaintiff’s motion for a new trial. Such a motion is addressed to the discretion of the judge, and no exception lies unless an abuse of judicial discretion or an error of law arising in the hearing on the motion is shown. Commonwealth v. Devereaux, 257 Mass. 391. Berggren v. Mutual Life Ins. Co. 231 Mass. 173, 176. Davis v. Boston Elevated Railway, 235 Mass. 482. Nothing to the contrary is decided by Simmons v. Fish, 210 Mass. 563, or Purcell v. Rose, 261 Mass. 431.

The finding for the plaintiff established that the accident which caused the property damage sought to be recovered was due solely to the negligence of the defendant; but it did not establish that the witnesses who testified that damage resulted in excess of $1 were trustworthy, or that they stated accurately the damage caused by the accident. The verdict for $1 is a finding that no greater amount was shown to be due by trustworthy testimony, and.may well be a proper verdict, although all the witnesses testified to facts which, if believed, would prove larger damages.

No abuse of discretion is shown, and no error of law appears in refusing to rule that the verdict is inconsistent in itself, was against the evidence and the weight of the evidence, or that the damages, in law, were insufficient.

The charge was accurate, and the verdict was not against it.

Exception overruled.