Handelman

Plaintiff appeals from an order granting defendant a new trial upon the ground that the sum awarded as general damages by the jury ($70,000) was insufficiently supported by the evidence and, therefore, excessive; the court further ordered that the new trial be limited to the issue of damages.

By occupation a professional deep water helium diver, plaintiff sustained an attack of oxygen poisoning resulting from an incorrect mixture of diving gas (the amount of oxygen being disproportionate to that of helium) supplied by defendant company. While various items of plaintiff’s damage were set forth in his complaint for personal injuries, the jury’s general verdict failed to segregate such items which included loss of earnings and earning capacity. In its order granting a new trial, the court expressed its dissatisfaction with the sufficiency of the evidence as to these latter items. Pursuant to section 657, Code of Civil Procedure, the court also stated that its order was based upon that ground, at the same time specifying its reasons for that conclusion.

Section 657, as amended in 1965 and 1967, also provides in pertinent part that on appeal from an order granting a new…