Garrett Freightlines, Inc. v. Sell

• Decision Date: 12 May 1942
• Docket Number: 6973
• Parties: GARRETT FREIGHTLINES, INC., Respondent, v. JOHN SELL, Appellant
• Court: Idaho Supreme Court

125 P.2d 1020

63 Idaho 738

GARRETT FREIGHTLINES, INC., Respondent, v. JOHN SELL, Appellant

No. 6973

Supreme Court of Idaho

May 12, 1942

AUTOMOBILES-PASSING PRECEDING VEHICLES-NEGLIGENCE-EVIDENCE-MEASURE OF DAMAGES-COST OF REPAIRS-TRIAL.

1. In action for damages to truck which was struck by defendant's automobile house trailer as he attempted to pass truck, evidence warranted finding that motorist was negligent in that motorist did not act as reasonably prudent man in attempting to pass truck in face of four automobiles approaching from opposite direction.

2. A motorist attempting to pass preceding vehicle in the face of several vehicles approaching from opposite direction is chargeable with a high degree of care.

3. In action for damages to truck, refusal to give defendant's requested instruction that measure of damages was cost of repair, not exceeding value of truck before collision or diminution in value of truck due to injury, was not prejudicial, where defendant tried case on theory that cost of repair was measure of damages and introduced no other evidence of diminution in market value.

4. In action for damages to truck, failure to instruct on measure of damages was not error, where no material controversy had arisen over rule of damages stated by defendant's counsel in presence of jury.

5. In action for damage to truck, admission of testimony of witnesses as to reasonable cost of repairing truck was not error, where case was tried on theory of defendant's counsel that measure of damages was reasonable cost of repairs.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

L. E Glennon, for Appellant.

The only specific charge of negligence supported by any evidence is the one to the effect that appellant turned back into the right lane of traffic before his trailer was safely clear of the overtaken vehicle. That being true, the respondent can only recover if such specific act of negligence is established by a preponderance of the evidence.

The evidence on that point clearly shows that the appellant acted with reasonable care and as an ordinarily prudent person would have acted under the existing circumstances. (45 C. J 1162, Sec. 749.)

At this time defendant was confronted with an emergency which placed him and his family in imminent danger.

In Stuart v. McVey, 59 Idaho 740, 87 P.2d 446, the rule applicable to this situation is stated:

"In time of imminent danger, a person is not necessarily negligent because he fails to take every precaution or adopt every means of safety that a careful calculation subsequently shows that he might have taken or adopted." (Mast v. Claxton, (Cal.) 290 P. 48; Tousley v. Pac. Elec Ry. Co. (Cal.) 137 P. 31; Shupe v. Rudolf (Cal.) 197 P. 57; Power v. Crown Stage Co. (Cal.) 256 P. 457; Karr v. Parks, 40 Cal. 188, 193.)

The court admitted the testimony of respondent's witness, Fred W. Ellis, as to cost of repairs, over appellant's objection, to establish the amount of damage; and refused to give defendant's requested instruction No. 1 as to the correct measure of damages, although there was no evidence to show that the cost of repairs constituted the correct measure of damages, there being no evidence as to the diminution in the value of respondent's equipment resulting from the injury.

The measure of damages to an automobile is the difference between the value before and after the injury. (Vol. 6 Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 3411; 25 C. J. 597, Sec. 83; Herrin Transfer & Warehouse Co. v. Carter Produce Co. (Tex.) 50 S.W.2d 458; Burns v. Bythwood (Ala.) 184 So. 340; Augerman Co. v. Edgemon, (Ut.) 290 P. 169, 79 A. L. R. 40.)

Evidence as to the cost of repairs is permissible to establish the damages where it is shown that such repairs constituted the necessary cost of restoration, and that the cost of such repairs was less than the difference between the value of the automobile before and after the injury. (25 C. J. 598, Sec. 83; Smith v. Calley (Cal.), 284 P. 974; Olds & Stoller v. Seifert, (Cal.) 254 P. 289.)

F. W. Tydeman, for Respondent.

There is no evidence of any emergency that would excuse the appellant. The driver of an automobile cannot create a situation and then excuse his actions by reasons thereof.

"A plaintiff may recover from an injury caused by the negligence of defendant, even though his own negligence contribute thereto, where defendant, knowing of such negligence, might by the exercise of reasonable care have avoided the consequences of it, and prevented the injury. (Pilmer v. Boise Tradition, 14 Idaho 327; Anderson v. Great Northern, 15 Idaho 513; Reppito v. Feely, 20 Idaho 619; Shut v. Boise Valley, 38 Idaho 593.)"

Appellant contends that the measure of damage to an automobile is the difference between value before and after the injury.

Costs of repairs is used as an element to show the difference before and after the accident. The cost of repairs alone may also be the measure of damages.

"The measure of damages for injury to personal property is its value at the time of the injury when it is totally destroyed, but when merely damaged the measure is the value of its use during the time it would take to make repairs and cost of repairs. (McGee v. Post Falls, 23 Idaho 608, 32 A. L. R. 706.)

It is certain that evidence of reasonable value of repairs is admissible relative to the value of the auto after it was injured. (Baldwin v. Mittrey, 61 Idaho 427. Notes and cases cited, 44 A. L. R. 1402.)"

AILSHIE, J. Givens, C. J., Budge, Holden, JJ., and MORGAN, J., concurring.

OPINION

AILSHIE, J.

This is an appeal from a verdict and judgment awarding damages for injuries to respondent's truck and trailer.

Late in the afternoon of July 18, 1940, J. E. Shepherd left Twin Falls for Pocatello, driving respondent's truck and trailer "loaded with cheese and some miscellaneous freight." On nearing the town of Murtaugh, about sixteen miles east of Twin Falls, he noticed, through his mirror, "a car coming from the rear with a trailer house behind." He was driving about 30 miles an hour; and the driver of the car and trailer, approaching him from the rear, was driving "very little faster." According to the testimony of appellant, who was driving the rear car and trailer, he was moving at "approximately about forty miles an hour." Appellant followed the freighter for about a half mile and then pulled out to see if the way was clear for him to pass. They were both going in a southeasterly direction on U.S. Highway No. 30. Shepherd's account, of the trailer house passing, is substantially as follows:

"Well, when I noticed him [Sell] coming alongside of me there was four cars coming from the easterly direction, and I decided if something wasn't done there was going to be a collision there in the middle of the road. I drove the truck off to the right of the road, run along on the shoulder for a little ways. I noticed in the mirror the trailerhouse was still coming slowly. I drove off as far as I dared to, the left wheel being just barely on the edge of the oil, and the right wheels clear off on the gravel, and these other four cars kept coming, and Mr. Sell was coming from behind . . . . as we approached these cars coming from the opposite direction, Mr. Sells passed about that time, and as the trailer house got even with the front end of the truck he cut in ahead of me and the rear end of the trailer house struck the front wheel of the truck and knocked me in the ditch . . . . it just knocked the wheel out of my hand, and it went into the borrow pit . . . . the truck as it went into the borrow pit cut deep into the sand and dirt there, and cramped underneath and the truck turned over on its side." (Italics supplied)

The collision caused serious damage to the truck and trailer.

Shortly after the accident, and on the same day, appellant signed a statement relating to the manner in which the accident occurred, as follows:

"Murtaugh, Id.

July 18, 1940

"My name is John Sell, I am 47 years old married and live at Genoa, Ill. I own a 1936 Ford Sedan and a Schultz House trailer. On July 18, 1940, while enroute to Ill. with my family and while near Murtaugh, Idaho I was involved in an accident. I was driving in a Southerly direction on U.S. No. 30 at about 5:10 P. M. and came upon a large truck and trailer also going South. I honked my horn and seeing that the truck was proceeding in a normal fashion I proceeded to pass. When my car was about even with the truck's front end I noticed four cars coming from the South going North. I had plenty of time to pass the truck and be back on my side of the road and still clear the first car but another car pulled out onto the West side of the road trying to pass the first North bound car and in order to avoid hitting this second car head on I had to cut in sharply ahead of the truck. I thought I had cleared the truck but after going down the road a ways my son who was looking out the window said the truck had gone in the ditch. I stopped immediately and found the truck had upset in the West barrow pit. I then noticed the right rear corner of my house trailer had been damaged where it had come in contact with the left front wheel of the truck. No one in my car was hurt in any way and I place the entire fault of the accident on the driver of the second North bound car who crowded me into the truck.

"I have Red the two Pags and it is true.

John Sell."

He afterward testified, on the trial, by deposition, and explained that he did not read the foregoing statement before signing it; and...