This is an action to recover property damage growing out of a motor vehicle collision. The incident occurred May 24, 1944, about 1 o’clock A.M., neаr the Maryland-village of :North-East, on U. S. Route No. 40, the principal automobile road between Washington apd Philadelphia. At that point the highway consists of four lanes, two northbound and two southbound, separated by a grass area approximately 50 feet wide. At about the place of collision there was а gradual northbound downgrade. Somewhere in the neighborhood of an hour before the collision a tractor-trailer unit of defendant (appellant) became disabled and was parked in the righthand northbound lane of the highway. A similar unit of plaintiff (appellee), also northbound, ran into the rear of the stalled truck. Plаintiff’s vehicle was damaged arid caught fire and the driver was burned to death. - There was a verdict in the. amount of $8,-873.84 for plaintiff.
•. On this appeal defendant claims, еrror on the foilowing grounds: (1) that the suit should have been dismissed without trial because a suit begun by defendant, involving the same parties and the same cause of actiоn, was then pending in the United States District Court in Baltimore; (2) that the court below refused to instruct the jufy in' accordance with defendant’s instruction No. 3; (3)’that the trial court dеnied defendant’s motion for a directed'.verdict; (4) that there was no competent evidence of the amount of damage sustained on which the verdict оf the jury could rest; and (5) that the court granted plaintiff’s Instruction No. 1.
We shall dispose of these points in the order in which we have stated them.
One:
The record shows that the action brought by plaintiff against defendant in the court below was begun prior in time to the proceeding brought by defendant against plaintiff in Baltimore, but the actiоn brought in the latter city was first reached for trial. Plaintiff here appeared in that proceeding, filed a counterclaim under Rule 13-(a) of Civil Procedure, 28 U.S.C.A. following section 723c, and a trial was had resulting-in a 'hung jury. Plaintiff thereupon calendared the case for trial in the District Court here. As we have seen, his action herе was first begun, and defendant duly appeared in the court below, admitted, jurisdiction and pleaded to the merits. In that state of affairs the universal rule is that the court here having assumed jurisdiction, all other court's should refrain from interference. It is welf settled that as a matter of comity between Federal courts of' equal jurisdiction one district court will not go forward where proceedings have been begun previously on the same cause in another district court. Ryan v. Seabоard & R. Co., C.C.,
Two: Defendant’s Instruction No. 3, which the court rеfused, would have told the jury that if they believed that the driver of plaintiff’s truck was asleep when the collision,occurred, their verdict should be, for the defendant. Thе court’s refusal was *843 placed on the ground that there was no testimony directly or indirectly on which to base such an instruction, and a careful search of аll the evidence shows that this is correct. Under these circumstances the court properly denied the instruction.
Three: Defendant’s request for a directed verdict was properly refused because the evidence was contradictory as to whether the stalled truck was lighted as the Maryland laws require, or was, in the foggy and rainy condition of the weather, invisible to the driver of the oncoming truck until too late to avoid the collision. In that aspect, the question of whose negligence was the proximate cause of the collision was properly submitted to the jury.
Four: The argument under this heading is that there is no substantial evidence to sustain the verdict and in particular that the court erred in permitting Mc-Cutcheon, the owner of the truck, and Fox, a witness for plaintiff, to testify as to the fair market valuе of the tractor and as to the reasonable rental value of the damaged trailer. We think that both McCutcheon and Fox were competent to testify on these points. McCutcheon was the owner of the truck and in addition testified that he was familiar with the sale and rental value of similar units. Fox was engaged in the businеss of repairing, servicing, renting and selling comparable equipment to that involved in this collision. The evidence offered on behalf of plaintiff on the length of time reasonably necessary to repair the trailer was meager and largely unsatisfactory, as was also the evidence of any effort to minimize the loss. Plaintiff himself testified that the trailer was taken to the plant of the manufacturer for repairs and that the delay that ensued was occasioned by inability to obtain necessary parts or to have the work speedily done under war-time conditions. The claim for loss of use during the period required for repairs was calculated by plaintiff to be two months. In the absence of any evidence to show that this was an unreasonable or unusual length of time, or of any objeсtion by defendant at the trial on this point, we think the evidence on the subject was properly submitted to the jury.
Five:
Plaintiff’s Instruction No. 1, given by the court, related to the measure of damages. At the outset we note that the accident 'having occurred in Maryland, the proper measure of damages would be that applied by the Maryland courts in similar situations. See Western Union Telegraph Co. v. Brown,
Affirmed in part and remanded for action in accordance with this opinion.
Notes
Plaintiff, having himself placed a total valuation on the tractor-trailer unit of $6,000, and there being no other evidence of greater value, was limited under the court’s instruction to a recovery of this sum, plus damage to the cargo of $2,091.-66, plus $75 towing charge, plus $237 loss of freight money, less $100 salvage on the tractor. The result is $8,303.66, which is $570.03 less than the amount of the verdict.