Barshfield v. Vucklich

108 Kan. 761 | Kan. | 1921

The opinion of the court was delivered by

Johnston, C. J.:

This action was brought by C. P. Barshfield to recover damages sustained by the act of M. M. Vucklieh in negligently running his automobile against one in which plaintiff was riding, injuring him and damaging his automobile. The plaintiff prevailed and defendant appeals.

The collision occurred at the intersection of Seventh and Ann streets in Kansas City. Plaintiff was driving his car south, on Seventh street and as he approached Ann street at a speed of six miles per hour he signaled that he was about to turn into that street. At that time the defendant, who was driving his car from the south on Seventh street at the alleged speed of thirty-five miles per hour, drove his car into that of the plaintiff at the intersection of the streets, overturning plaintiff’s car and throwing him out on the pavement.

Error is assigned by'defendant on the refusal of the court to sustain a demurrer to plaintiff’s evidence. There is a contention that there was no. evidence of negligence by the defendant, no evidence that the car was being driven at an excessive rate of speed, and that the plaintiff himself was negligent in turning his car in front of that of the defendant. The plaintiff did not undertake to give the rate of speed at which the defendant was driving, but he did testify that while he was driving thirty or forty feet at a rate of six miles per hour, the defendant drove his car two hundred feet, showing that defendant was driving at a speed of at least thirty miles per hour. The statute provides that no person.shall operate a motor vehicle within a city at a speed greater than twelve, miles an hour, and further that it shall not be driven across an intersection of streets within a city at a speed exceeding six miles per hour. (Laws 1917, ch. 74, § 5.) The plaintiff had a right to assume that the defendant was driving at a legal rate of speed, and if the defendant had been driving at that rate the .plaintiff could have made the turn in safety. The proof of negligence is deemed to be sufficient.

Complaint is made of an instruction to the effect that if either plaintiff or defendant violated the statute relating to speed, it would constitute negligence. The running of a car at an illegal rate of speed is of itself a violation of the law and negligence, but of course a person violating a statute or local ordinance fixing a speed limit is not liable for damages unless such damages are the proximate result of the illegal speed. (Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397.) This rule was not overlooked in the trial as the court, after telling the jury that a violation of the statute constituted negligence, followed it with another instruction that they could not find against the defendant unless the negligence was the proximate cause of the injury to plaintiff or his automobile. The same principle was repeated in another part of the charge, thus leaving no ground for the defendant’s complaint.

Objection is made to the instruction relating to the measure of damages as applied to the automobile. The instruction as to that branch of the case was that if they found for the plaintiff they should allow him “his reasonable and necessary expenditures in repairing said automobile, and the difference, if any, by way of diminution between the fair market value of said automobile immediately before said collision and immediately following said collision, and the making of said repairs, not to exceed in all $3,000.” Plaintiff offered testimony to the effect that he had expended $33.45 towards the repair of the machine to make it run; that its value before it was injured was $546.71; and further, that its value after the injury and before repairs was $400, and that its value after repairs was $450. In measuring damages in such a case the general rule applied is to allow the difference between the value before the injury and the value after the accident. (Huddy on Automobiles, 5th ed., § 719.) Some authorities support the view that the damages may be measured by the expense of repairing the car. In many cases this rule is not adequate or satisfactory since the injury may not be susceptible of repair or the depreciation due to the injury of the machine- may be much greater than the cost of any practical repairs made upon it. In other cases after the repairs are made the car might be of greater value than it was before the accident. In one case after the repairs the car may be worth less than it was before the injury and in the other the repairs made may actually increase its value. In any event.the question of damages should not have been submitted on both theories, for if submitted on both, double damages might be allowed. (Huddy on Automobiles, 5th éd., p. 942.) The mistake of the court in submitting both theories to the jury may be remedied by deducting from the verdict the amount expended upon repairs, which was shown to be $33.45. The trial court is directed to reduce the amount of plaintiff’s recovery to that extent. '

Objections were made to the admission of evidence. First it is said that plaintiff’s testimony as to the value of the car was not admissible since it was not shown that he was competent to give values. There was testimony to the effect that he was accustomed to handling cars of the kind injured, had bought and sold several of them and was fairly familiar with their value. His evidence was admissible.

Another objection is that the court permitted inquiry as to other acts of careless driving and of accidents resulting from it. This testimony was drawn out in the cross-examination of the defendant. He had testified that he was a careful driver and was driving carefully at the time of the accident. He was then asked if he had not been stopped and reprimanded by officers for fast driving, if he had not run into a light pole, if he had not struck a boy and had not been arrested for careless driving. To some of these inquiries he gave an affirmative answer and to others he entered a denial. On the direct examination no evidence was offered as to his driving habits or of careless driving on other occasions. The general rule is that acts of negligence on other occasions than the one in question are, with a-few exceptions, inadmissible. (1 Wigmore on Evidence, §§ 65, 199.) Here, however, it was only a cross-examination of the defendant himself as to his claim of careful driving, and no reason is seen why such an inquiry may not be permitted within reasonable limitations. It does not appear that the discretion was abused in this instance or that the rights of the defendant were .prejudiced by the extent of the inquiry.

There is a contention that the damages awarded ($2,000) are excessive. In view of the testimony as to the personal injuries sustained by the plaintiff, as well as the damages to his automobile, it cannot be held that the damages allowed are excessive.

The case is remanded with the direction to deduct $33.45 from the amount awarded to plaintiff, and so modified the judgment is affirmed.