Robson v. Zumstein Taxicab Co.

198 Ky. 365 | Ky. Ct. App. | 1923

Opinion op the Court by

Judge Clay

Reversing.

iOn December 9, 1919, appellant’s machine was going west on Third street in Newport and appellee’s taxi was going east on the same street. At the intersection of Third street and Linden avenue there, was a collision which resulted in injury to the two machines and also to the person of appellant. Appellee sued for $220.36, the amount of its repair bill, while appellant counterclaimed for the injury to her person and her machine. The jury found for appellee in the sum of .$220.36, and from the judgment entered on the verdict this appeal is prosecuted.

It is first insisted that appellant was entitled to a peremptory because the evidence was not sufficient to take the case to the jury, either on the question of negligence or the extent of appellee’s damages.

Appellee’s evidence was to the effect that the two machines were proceeding slowly and in opposite directions. The lights on each car were burning and each car was on the proper side of the street. When appellee’s car was past the intersection of Third street and Linden avenue, without warning appellant’s car suddenly changed its course and ran in front of the taxi, thus causing the accident. On the other hand, the evidence for. appellant tended to show that the driver of appellant’s car had no notice or warning of the approach of the taxi, and that the taxi, which was being driven at a high rate of speed, collided with appellant’s car. If the evidence for appellee be true, it cannot 'be doubted that there was sufficient evidence of negligence on the part of the driver of appellant’s car to take the case to the jury.

Appellee’s driver testified that certain parts of the taxi were injured. The bookkeeper for the White Company, which made the repairs, testified that the company repaired the steering system and the front axle, straightened the frame and put in a new fan, new springs, new. lamps and new brackets, and also a new radiator and a new left hand fender, unci that the entire cost of the parts, and of the labor which was reported to her, was $220.36, but she did not state that the charges were reasonable. Although the measure of damages was the difference in the market value of the taxi before and after the injury, and no witness testified as to its market value on either occasion, yet as it was clearly shown that the machine was injured and certain parts had to be restored, and that these parts cost something, it cannot be doubted that the evidence was sufficient to authorize a finding of nominal damages, and that being true, appellant was not entitled to a peremptory on the ground that no damage was shown. However, the evidence was not sufficient to sustain a verdict for the full amount of the repairs. It was not shown that the cost of the repairs was reasonable, or that the bill for the repairs represented the difference in. the market value of the taxi before and after the injury. While the reasonable cost of repairs is always admissible on the question of damages, yet as the repairs may render the article more valuable than it was before the injury, he who causes the injury is not required to bear the full expenditure for the repairs, but is only liable for the difference in the market price of the article before and after the injury. Southern Ry. Co. v. Kentucky Grocery Co., 166 Ky. 94, 178 S. W. 1162. We therefore conclude that the evidence was not sufficient to sustain the verdict.

The court refused to permit one of the occupants of the taxi to testify that the driver of the taxi did not give any signal of his-approach to the intersection. It is insisted that the exclusion of this evidence was not prejudicial because the driver had already admitted that he did not give a signal, and the purpose of the court in rejecting the evidence was to save time. If the court had stated that the objection was sustained because the fact was admitted there might be some merit in the contention, but, as the driver of the taxi coupled the statement that he gave no signal with the further statement that no signal was necessary, and the ground on which the additional evidence was excluded was not made clear to the jury, we are not prepared to say that the action of the court did not have the effect of misleading the jury as to the importance and materiality of the fact that no signal was given.

Judgment reversed and cause remanded for new trial consistent with this opinion.