Coleman v. Levkoff

The opinion of the Court was delivered by

Mr. Justice Marion.

Action for damages in the sum of $600, on account of injury to his automobile, alleged to have been sustained by plaintiff as result.of a collision with defendant’s car on Saluda Avenue in the City of Columbia. The plaintiff ran his car into the car of the defendant about 9 o’clock at night, February 8, 1923, and alleges that the collision and consequent injury to his automobile were caused by the unlawful and negligent acts of the defendant in improperly parking her automobile in the street “contrary to the rules of prudence and the ordinances of the City of Columbia.” Defendant denied plaintiff’s allegations of negligence, and set up a's defenses (1) the sole negligence of the plaintiff, and (2) the contributory negligence of the plaintiff. Plaintiff recovered verdict for $250, and from judgment thereon the defendant appeals.

The first exception assigns error in the ruling of the trial Judge “permitting in evidence,” over defendant’s objection, an estimate as to cost of repairing plaintiff’s car. Cooper, a witness for plaintiff, stated that he had made such estimate. Hq was then asked what the estimate was. Defendant’s counsel objected “to the estimate,” but stated no ground. Thereafter the witness read an estimate made by him as an employee of the Roddey Motor Company, at plaintiff’s request, as to cost of repairing plaintiff’s machine. In any view of the measure of damages,'the cost of repairing the injured machine was directly relevant. The condition of the machine after the injury from the viewpoint of what would be required to repair it was a matter clearly within the scope of the inquiry. Defendant’s counsel suggests in argument that the estimate was “incompetent as being merely a statement to support testimony of the witness as to what he found actually wrong with the car, and was grossly in excess of the repairs which were proven to have been made.” It does not appear that the memorandum was not such a writing as the witness was entitled to use to refresh his memory, nor does it appear that the writing itself was introduced in evidence. See Gwathmey v. Foor Hotel Co., 121 S. C., 237; 113 S. E., 688. The exception must be overruled.

Appellant’s second contention (exceptions 6 and 7) is that the presiding Judge erred in charging the jury as to contributory negligence. It is complained that the language of the Judge not only failed to enlighten, but was so worded as to give, the jury an erroneous view. The exceptions fail to point out any specific error, and an examination of the charge complained of fails to disclose any ground for valid criticism.

Appellant’s third contention (exceptions 5 and 9) is that the presiding Judge erroneously instructed the jury as to the measure of damages. The charge complained of is as follows:

“The proper measure would be to take the reasonable market value of the automobile just before the occurrence, aqd the reasonable market válue just after the occurrence, and the difference between those two values in the eyes of the law would make that party whole; that much money figured with what he has left of the property and added to that would make him whole, and in this case, provided it is proven, he would-be entitled to reasonable compensation for being out of the use of the car, for the time it would have reasonably taken to fix it and only during that time, and he would be entitled to the reasonable rental value of a like car of this make, or if that could not be gotten, then one as near like it as possible.”-

Defendant made.no specific request to charge, and at the conclusion of the Judge’s charge, in response to an inquiry from the Court as to whether counsel desired any further charge, defendant’s counsel answered in the negative.

The general rule is that the owner of personal property, injured by the negligence of another, is entitled to recover the difference between the market value of the property immediately before the injury and its market value immediately after the injury. 17 C. J. 877, § 183; Sullivan v. City of Anderson, 81 S. C., 478; 62 S. E., 862. But it is the duty of the owner of property, injured by the negligence of another, to use all reasonable effort to minimize the damage. Sullivan v. City of Anderson, supra. Willis v. Tel. Co., 69 S. C., 539; 48 S. E., 538; 104 Am. St. Rep., 828; 2 Ann. Cas., 52. Jones v. Tel. Co., 75 S. C., 208; 55 S. E., 318. If in the discharge of that duty the owner has the property repaired and restored to a condition in which its market value equals or exceeds the market value before the injury, the measure of damages in that case is the reasonable cost of restoring the property to its previous condition, together with the value of the use of the property during the time reasonably required to repair it. As bearing on the question of the value of the use of the property of which the owner was deprived, the rental value or expense of hiring a substitute for that of which he was deprived is a pertinent consideration. See 17 C. J., 877, 878, §§ 183, 184, and cases cited. If as a result of the repairs the property is not restored to a condition in-which its market value is equal to the market rvalue before the injury, then the measure of damages is the difference in the market value of the property immediately before the injury and its market value immediately thereafter, in its condition of partial restoration, together with the reasonable cost of the repairs made and the value of the use of which the owner was deprived during the time reasonably required to repair the property. Sullivan v. City of Anderson, supra.

In the case at bar plaintiff had his car repaired at a cost appoximately of $250.27. While the presiding Judge’s charge was not as full as it might well háve been on this phase of the case, we are satisfied that there was no prejudicial error. The amount of the verdict seems to have been for the amount approximately of the plaintiff’s bill for the repairs. It does not appear that the amount of the verdict included anything for the deprivation of the use of the property, and the verdict is certainly not susceptible of the inference that a recovery was allowed for any difference in the market value of the property before and after the injury and also for the cost of repairs. Exceptions 5 and 9 are therefore overruled.

Appellant’s only remaining contention (exceptions 3 and 8) is that the trial Judge erred in not directing a verdict in favor of the defendant, upon the ground that the! evidence was open to no other reasonable inference than that the plaintiff’s injury was caused either by his sole negligence or by his contributory negligence and willfulness. The contention, as we understand it, is predicated mainly upon the proposition that plaintiff by his own admission, was driving at a speed in excess of the limit imposed by a city ordinance. Plaintiff testified that he was running about 18 miles an hour, and it appears that the speed limit prescribed by the ordinance was 15 miles an hour. But whether the negligence of the plaintiff in driving at a speed in excess of the prescribed limit, or his negligence in any other particular, was the sole proximate cause of the collision, or contributed thereto as a proximate cause, was, under the facts in this case, a question for the jury. If the plaintiff had been running at 15 miles per hour instead of 18, can it be said with any degree of certainty that the collision would not have occurred? Did the difference in speed between 15 and 18 miles per hour contribute to the collision to an extent and in a manner that would enable the trial Court to' say as a matter of law that without this negligence, which consisted in the slightly excessive speed, the collision would not have occurred? We think the evidence affords no adequate basis for that conclusion. Obviously the effect of speed would depend upon many considerations, such as grade of the street, sufficiency of the brakes, distance obstruction was seen before brakes were applied, etc. We are clearly of the opinion that the issue was properly submitted to the-jury.

All exceptions are overruled, and the judgment of the Circuit Court is affirmed.

Messrs. Justices Watts and Cothran concur.

Mr. Chiee Justice Gary did not participate.