248 P. 1031 | Cal. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *787 An action was brought by plaintiff alleging that defendant corporation, in the operation of a motor-truck owned by it, negligently caused damage to an automobile in the possession of plaintiff, the elements of damage alleged being injuries to the automobile and the temporary loss of its use. Judgment was entered for plaintiff, from which defendant appealed.
The grounds urged for reversal are that defendant's special demurrer should have been sustained; that the evidence was insufficient to support the findings, and that the court failed to find on the issue of contributory negligence.
[1] The testimony shows that the injuries alleged were caused on July 25, 1924, while plaintiff was driving in a northerly direction on the east side of Lincoln Avenue in Santa Clara County; that the automobile was one in his possession under a contract for its purchase and used in the course of his occupation; that when he reached a point twenty feet south of a private road or driveway leading into the highway from the east and a view of which was obstructed by shrubbery defendant's truck emerged therefrom; that no warning of its approach was given and that no horn or other warning device was carried by it; that plaintiff applied his brakes, but was unable to stop before striking the truck. The court found defendant to have been guilty of negligence proximately causing the injury, and that plaintiff was driving in a careful and prudent manner.
The latter was a sufficient finding on the issue of contributory negligence (Arrelano v. Jorgensen,
[2] Defendant offered no evidence, but urges that contributory negligence appears from that adduced by plaintiff; *788 that it appearing that the latter's brakes were applied at a point twenty feet from that of the collision, it follows from the fact that the car failed to stop before the impact that it was not equipped as required by section 94 of the Vehicle Act, which provided that "every motor vehicle operated upon a public highway shall be provided at all times with brakes which shall be adequate to promptly check the speed of and to stop the motor vehicle," and that by the use of ordinary care the car might have been turned to the left of the truck and the injury avoided.
The findings of the trial court are fairly supported by the evidence, and we cannot say as a necessary conclusion therefrom that the brakes were defective, or that in view of the sudden appearance of danger plaintiff was wanting in ordinary care in failing to turn to the left.
[3] Defendant further contends that the evidence shows that the highway at that point traversed a residential district; and that it appearing that plaintiff's speed there exceeded twenty miles per hour, to wit, twenty-five miles per hour, it follows as a matter of law that he was guilty of negligence proximately contributing to the injury.
A residence district within the meaning of the Vehicle Act is "the territory contiguous to a public highway which is on the line of such highway, not mainly devoted to business, where for not less than a quarter of a mile the dwelling-houses and business structures on such highway average less than 100 feet apart" (subd. b, sec. 114, Vehicle Act, Stats. 1923, p. 517). The act further provides that "No territory shall be deemed a business or residence district unless sign-posted as provided in this act." (Subd. c, sec. 114, Vehicle Act.) The place of the accident was not within a municipality, nor, as far as shown by the record, had signs as provided by the act been posted restricting the speed of vehicles to twenty miles per hour.
[4] The court found that plaintiff was obliged to expend $361.77 as the reasonable cost of repairing the automobile and suffered further damage in the sum of $205 due to the loss of use during the period reasonably required for making the repairs. The measure of damages in cases of this character is the difference in the value of the property immediately before and immediately after the injury, subject *789
to the proviso that if the property be susceptible of repair at an expense less than such difference the measure of damages is the reasonable cost of the repairs (Kincaid v. Dunn,
The evidence fairly supports the inference that the repairs were made necessary by the accident, and was, together with *790 testimony as to the reasonable value of the use of the car of which plaintiff was shown to have been deprived, sufficient reasonably to support the conclusions of the trial court.
[6] The complaint stated a cause of action, and appellant's special demurrer being directed to uncertainties appearing from allegations therein which were immaterial was properly overruled.
[7] It is admitted by respondent that the allowance for loss of use exceeded the amount prayed for in this behalf, and that the judgment should be modified to that extent. This difference is the sum of $30, and the judgment is therefore modified by deducting said sum therefrom, and, as so modified, is affirmed, respondent to recover his costs on appeal.
Tyler, P.J., and Knight, J., concurred.