Opinion
No. 3584.
Decided May 7, 1946.
Whether plaintiff's violation of the statute (R. L., c. 119, s. 16), relating to "giving timely signal with his horn" was causal or contributed to cause the accident is a question determinable by the trier of fact. So also, the causative effect of defendant's violation of the statute (R. L., c. 117, s. 9), in failing to have his license renewed before the accident was for the trier fact. The failure of an operator of a motor vehicle approaching an intersection to grant the right of way to other vehicles arriving at the point of intersection from his right at approximately the same instant, in accordance with the statute (R. L., c. 106, s. 3), sustains a finding of negligence. No inference as an admission of liability, in the absence of other explanatory evidence, can be drawn from the remark "well that's done" made by an operator of a motor vehicle immediately after his vehicle was involved in an accident. One who has conducted a motor-vehicle repair shop for thirty-three years and who had bought and sold cars for that period is amply qualified to express an opinion as to the value of a car before and after an accident. While the defendant's liability for negligence may properly be measured by the difference in value before and after the automobile was damaged plus loss of use, the plaintiff may recover, in lieu thereof, the reasonable cost of repair with due allowance for any difference between the original value and value after repairs and loss of use.
CROSS ACTIONS ON THE CASE to recover property damages resulting from the collision of two automobiles. The defendants in the first action (plaintiffs in the second action) are Harry and David Haymond doing business as copartners under the name of Prime Auto Sales Co. Finding for Copadis, hereinafter called the plaintiff, in each case, with a verdict of $590. Trial by the Court who made the following findings and rulings:
"The parties seek recovery for damages to their respective automobiles, as a result of a collision in the area of the intersection of Silver and Pine Streets, in Manchester, on September 2nd, 1943.
"On the day of the accident, Copadis was proceeding in his automobile in a southerly direction on said Pine Street, and [David] Haymond was operating his car in a westerly direction on Silver Street. As Copadis approached to within eight or ten feet of the intersection he observed the Haymond car proceeding westerly at his left on Silver Street. Copadis was travelling approximately fifteen miles an hour at the time of the accident. The highways were dry, and the weather fair. Each operator had a clear view of the other, as there was a vacant lot at the northeasterly corner of the intersection.
"The cars arrived in the area of the intersection at approximately the same instant. Haymond estimated the Copadis car to be one hundred feet further away from the intersection than himself when he first observed it, and that its speed approximated his own. Haymond did not have an operator's license at the time. His license had previously expired and he had neglected to renew it. It had not been suspended for any cause. He had operated motor vehicles for some twenty years.
"Haymond, previous to reaching the intersection, was travelling fifteen to twenty miles an hour, possibly twenty-five, but as he approached Pine Street he slowed down considerably and estimated his speed at ten miles per hour. After the accident both cars were on the westerly side of Pine Street south of the intersection, the Haymond car ahead of the Copadis car. Haymond did not discover there was likely to be a collision until after he had entered the area of the intersection. The brake marks from the Haymond car, all within the area of the intersection, measured approximately seven feet. The front left side and left rear fender of the Copadis car were damaged. The front and right side of the Haymond car came in contact with the front and left side of the Copadis car. Both highways were approximately thirty feet in width, and intersected at approximately right angles. Both parties apparently were under the impression that they could cross the intersection in safety. Copadis did not blow his horn, but did slow down.
"The Court finds and rules as follows:
"1. That both vehicles arrived at the point of intersection at approximately the same instant.
"2. The plaintiff Copadis had the right of way.
"3. The failure of Copadis to blow his horn, while a violation of the statute (R. L. Chap. 119, Sec. 16), was not causal.
"4. The failure of Haymond to have a license at the time did not in any way contribute to the cause of the accident.
"5. The failure of Haymond to grant the right of way to Copadis was negligence, and such negligence was the cause of the accident."
The Haymonds excepted to the denial of their motions for a nonsuit and directed verdict, to the admission of certain evidence, and to certain findings and rulings. They also excepted to the denial of their motion to set the verdict aside as excessive and as against the law and evidence and the weight of the evidence. Their bill of exceptions was allowed by Wheeler, J.
Thorp Branch, Sheehan Phinney and Alvin A. Lucier (Mr. Floyd Thorp orally), for the plaintiff.
Charles F. Hartnett (by brief and orally), for the defendants.
This intersectional collision occurred under conditions of weather, travel, visibility, and absence of obstructions which may be described as favorable. "There was evidence from which the jury might have found that either or both drivers were negligent. There was also evidence from which they could have found that either or both were free from fault. Under these circumstances the issue of their due care was for the jury." Bissonnette v. Cheverette, 87 N.H. 211, 213. The causative effect of the plaintiff's failure to "give timely signal with his horn" (R. L., c. 119, s. 16; Pickard v. Morris, 91 N.H. 65, 69) was for the trier of fact and is in the same category as the defendant's failure to have renewed his license before the accident. R. L., c. 117, s. 9; Mandell v. Company, ante, 1. The Trial Court could properly find and rule that neither statutory violation was causal or contributed to the accident. Vassillion v. Sullivan, decided this day.
The plaintiff's right of way was relative and not. absolute. Glendron v. Glidden, 84 N.H. 162. The defendant's failure to grant the right of way to the plaintiff in accordance with R. L., c. 106, s. 3, sustains a finding that the defendant was at fault. Doyle v. Company, 93 N.H. 61. The motions for nonsuit, directed verdict and the motion to set aside the verdict as against the law and evidence were properly denied.
The plaintiff was asked what "the operator of the Prime Auto Sales car" (David Haymond) said to him immediately after the accident. Counsel for the Haymonds objected, and the Presiding Justice stated that the question might be answered subject to exception. The plaintiff then testified that the defendant said, "Well, that's done." It is now claimed that the testimony was erroneously received, since an admission by one partner not shown to have been made in the course of a partnership transaction is not binding upon the firm. Caswell v. Maplewood Garage, 84 N.H. 241. In the absence of other explanatory evidence there was nothing in the remark itself from which an admission of liability could properly be inferred, cf. Alexander v. Todd, 89 N.H. 365.
On the issue of damages a witness, who had conducted a motor-vehicle repair shop for thirty-three years and had bought and sold cars for that period, stated his opinion of the value of the car before the accident as $1,000 and after the accident as $500. The witness was obviously qualified (Watkins Co. v. Peterson Express, 88 N.H. 476), and his testimony clearly competent (Campbell v. Company, 91 N.H. 390). The cost of repairs was $458 which included a charge of $90 for the plaintiff's rental of another car in his business while his car was being repaired. There was evidence that the repairs did not restore the car to its former condition. As elements of damage, it was proper to introduce evidence of the reasonable cost of the repairs (Smith v. Turner, 92 N.H. 49), and the loss of use. Campbell v. Company, supra.
The rule is well expressed in Restatement, Torts, s. 928, as follows:
"Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
"(a) the difference between the value of the chattel before the harm and the value after the harm or, at the plaintiff's election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
"(b) the loss of use."
The verdict of $590 was consistent with this rule and not excessive.
Judgments on the verdicts.
BRANCH, J., did not sit: the others concurred.