166 Ky. 360 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
This was a suit by the appellee, E. B. Sweeney, against the appellant to recover damages on account of injuries to an automobile.' The appellee claims that .a certain crossing of the appellant’s track across a pike was greatly out of repair, defective, and not reasonably safe for travel over it, and that these conditions arose from the gross negligence of the appellant in failing to properly maintain the crossing in a reasonably safe condition for travel
The appellant filed grounds and moved the court to set aside the verdict and judgment and to grant it a new trial, but the court overruled the motion, to which appellant excepted, and prayed an appeal to this court.
The appellant insists that the trial court erred to its prejudice in giving instruction No. 2 to the jury, and in refusing it a new trial because of its. claim, that the damages awarded were excessive and indicated that the jury was actuated by passion and prejudice in fixing the .amount of the recovery.
Instruction number two was given by the court upon the motion of appellee and over the objection of the appellant, and is the instruction given which fixed- the measure of damages, by which the jury was to be guided in making its verdict, if it should find for appellee, and is as follows:
‘ ‘ If your finding be for the plaintiff, you will find for the plaintiff the difference in value of said automobile before and after it was injured, at the time of said injury •of same, not to exceed, however, the sum of $650.00.”
The contention of appellant is that the measure of damages was the difference in the market value of the automobile just before it received the injuries and just after it received the injuries, while the appellee ’ complains of the action of the court in limiting the amount of his recovery to $650.00, when the amount sought by him in his petition was $750.00. The argument is advanced, that the measure of damages fixed by the in
To say that a second hand automobile has not a market value, would be the same as to hold, that wagons and carriges, after a period of use, have not a market value, because no two of them would be in exactly the same eon
“In the case of injury to personal property, the measure of damages is the difference between its market value before and its market value after the injury.”
In the recent case of Southern Railway Co. in Ky. v. Kentucky Grocery Co., 166 Ky., 94, the following was declared to be the rule in the cases of destruction or injury to personal property:
“Where an injury to personal property does not effect its destruction, that is, where it is susceptible of repair, the measure of damages is the difference between the reasonable market value of the property immediately before the injury, at the place thereof, and its reasonable market value immediately after the injury, at the place thereof. ’ ’
If the destruction of personal property is so complete, that it is not susceptible of repair, the measure of dam
With, regard to the fact of the court fixing the maximum amount, which appellee could be allowed to recover,, at $650.00, instead of $750.00, the amount sued for, it. was not error for the court to fix the maximum amount at the greatest, which any evidence conduced to show was the difference between the market value of the machine-immediately before the injuries to it and its market value-immediately thereafter.
For the error embraced in the instruction, supra, the judgment will have to be reversed, and it will not be necessary to discuss the other grounds of reversal relied upon, as upon another trial, other facts may be in evidence, which the present record fails to show.
The judgment is reversed and cause remanded fop further proceedings consistent with this opinion.