Hawkins v. Garford Trucking Co., Inc.

• Decision Date: 16 June 1921
• Citation: 96 Conn. 337,114 A. 94
• Parties: HAWKINS v. GARFORD TRUCKING CO., Inc.
• Court: Connecticut Supreme Court

114 A. 94

96 Conn. 337

HAWKINS v. GARFORD TRUCKING CO., Inc.

Supreme Court of Errors of Connecticut.

June 16, 1921

Appeal from Superior Court, Fairfield County; John E. Keeler, Judge.

Action by Robert Hawkins against the Garford Trucking Company Incorporated, resulting in judgment for plaintiff, and from denial of his motion to set aside the judgment as against the evidence, etc., defendant appeals. Error, and new trial ordered, unless plaintiff enters remittitur.

Samuel E. Hoyt, of New Haven, for appellant.

Henry Greenstein, of Bridgeport, for appellee.

WHEELER, C.J.

The plaintiff seeks to recover damages to his automobile incurred through a collision between it and defendant's truck together with the damage suffered by him from the loss of use of his automobile for 51 days.

The defendant's assignment of error that its motion to set aside the verdict should have been granted because the plaintiff had failed to sustain the burden of proof that he was free from contributory negligence is not well taken. Upon the evidence this issue was clearly one for the jury. The court charged the jury upon the subject of contributory negligence that, if plaintiff's " conduct did in any way contribute to the accident out of which the injury arose he cannot recover, even though the defendant may be in fact negligent." This was an incorrect instruction, but it is in accordance with the defendant's present claim, and is not assigned as error. We restated our settled rule upon this point in Andrews v. Dougherty, 95 Conn. ___, 112 A. 702, thus:

" Our rule is that if the plaintiff materially or essentially contributes to his injury he cannot recover. Coogan v. AEolian Co., 87 Conn. 149, 156, 87 A. 563; Clarke v. Conn. Co., 83 Conn. 219, 223, 76 A. 523; Beers v. Housatonuc R. R. Co., 19 Conn. 566, 572."

Contributory negligence, when of this degree, becomes a cause of the resulting injury, and, though the defendant be found to have been negligent at the same time, there can be no recovery.

" Whenever there is concurrent negligence of the parties of such a character that the negligence of each is to be regarded as a proximate cause of the resulting injury, there can be no recovery." Radwick v. Goldstein, 90 Conn. 701, 709, 98 A. 583, 586.

The defendant assigns as error this instruction to the jury upon the plaintiff's claim of damage for the use of the machine.

" The fact of its use in the accommodation of the plaintiff and his family entitled him to damage for the loss of that use. You can arrive at that, gentlemen, by considering about how much of an accommodation the use of a machine of that kind is for a period of 50 or 51 days or so in the family and business life of this man, and you will have to draw upon such experience as you may have and observation to determine upon such a sum as you think proper, if you find that the plaintiff is entitled to recover, and that he was deprived of the use of this machine for the period which has been alleged."

The finding discloses the name of the car, its ordinary use as a pleasure car, and its occasional use for business purposes, and the fact that because of the damage done the car by the collision with the truck the plaintiff was deprived of its use for 51 days.

It further discloses that no other evidence of the amount of the loss of the use of the car was presented. In addition to the damage to his car the plaintiff was entitled to recover the value of the use of the car during the period necessary for its repair. Fritts v. New York & N.E. R. R. Co., 62 Conn. 503, 509, 26 A. 347; Brown v. Southbury, 53 Conn. 212, 214, 1 A. 819; New Haven Steamboat & Trans. Co. v. Vanderbilt, 16 Conn. 420. The value of the use is fixed by finding the market value of the use of the property during the period of loss of use. The market rental value of the property is a material and relevant factor in helping to ascertain the value of the loss of use. Cook v. Packard Motor Car Co., 88 Conn. 590, 594, 92 A. 413, L.R.A. 1915C, 319.

But rental value will not furnish the measure of damages for loss of use of an automobile. For the rental value of an automobile includes necessarily a substantial sum for wear and tear and depreciation. No definite general rule can be laid down except that the award by verdict or judgment should be for fair and reasonable compensation, according to the circumstances of each case. Cook v. Packard Motor Car Co. supra. ...