Opinion
Submitted on briefs January 21, 1930
Affirmed May 20, 1930
Appeal from Circuit Court, Multnomah County, WALTER H. EVANS, Judge.
Action by J.H. Goff against Iver Elde and others. Judgment for plaintiff against defendants Iver Elde and another, and they appeal.
AFFIRMED.
Emmons, Lusk Bynon of Portland for appellants.
B.A. Green of Portland for respondent.
In Banc.
This is an action for personal injuries and damages to an automobile. Judgment was entered on a verdict in favor of plaintiff and against defendants, Iver Elde and William Oswalt. Defendants assign four errors. The first alleged error is the admission over defendants' objection of a question propounded to Robert Bobell, a witness called by plaintiff. The question and answer was:
"Q. Now, I will ask you this question: When you are in the center of Fourteenth street, and at a point fifty feet in the center or approximately in the center of Fourteenth street, and at a point fifty feet north of the curb line of the intersection of Fourteenth and Jefferson streets, how far can you see to your right an automobile approaching and coming from the west and going east on Jefferson street as it approaches this intersection?
"A. Forty-two feet."
The second assignment of error is based on the ruling of the court permitting plaintiff to amend his complaint by adding an allegation reading as follows:
"In approaching within fifty feet and in traversing the said intersection of said highways at said Fourteenth and Jefferson streets at a speed in excess of fifteen miles per hour when the driver of the said Packard car, to wit, William Oswalt's vision was obstructed during the last fifty feet of his approach to such intersection so that he did not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection."
The third assignment of error is based on the following instruction given by the court:
"The law further provides that no car shall be operated at a speed in excess of fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection."
Defendants submit said assignments of error Nos. 1, 2 and 3 under one argument, all based on the theory that the court erred in permitting said amendment.
The fourth assignment of error is the court's refusal to give the following instruction requested by defendants:
"I instruct you that in the event you find a verdict in favor of the plaintiff you can not allow him in excess of the sum of $ ____, the amount of the repair bill introduced in evidence on account of damage to his automobile."
The collision occurred at the intersection of Fourteenth and Jefferson streets in the city of Portland. Fourteenth street extends northerly and southerly and Jefferson street extends easterly and westerly, both being established thoroughfares in the city of Portland. Plaintiff stated two causes of action in his complaint. First, is his claim for injuries to his person, and, second, damages done to his automobile. In addition to general denials defendants charge plaintiff with contributory negligence. The case was well tried and the principal controversy was over the facts. Plaintiff demanded $8,000 damages for general damages for personal injuries, $50 by way of special damages, and $300 for damages to his automobile. He recovered judgment for $1800.
The amendment to plaintiff's complaint was permitted in order to conform the complaint to the evidence received. Such amendments are liberally allowed and the trial court's ruling is largely discretionary. This court will not interfere with the trial court's ruling unless there is a clear abuse of discretion. No question is raised about the materiality of the amendment. Defendants do not complain that they were surprised. The purpose of the amendment and the evidence was to show that the legal rate of speed approaching the intersection where the collision occurred was 15 miles per hour.
"(3) Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of 200 feet from such intersection." General Laws of Oregon, 1927, chap. 217, § 1, subd. 16(3).
The court did not abuse its discretion in allowing the amendment. It was germane to the issues as framed by the pleadings and no showing is made that defendants were put to disadvantage in any degree by allowing the amendment. Such amendments should be liberally allowed in the promotion of justice. It logically follows since the amendment was permissible that the admission of the testimony, assigned as error No. 1, and the instruction given, assigned error No. 3, were not erroneous.
Defendants were not entitled to the instruction requested, which is the basis of assignment of error No. 4. The true measure of damages where an automobile has been damaged by the negligence of another is the difference in the value of the automobile just before the accident and immediately thereafter.
"The measure of damages for an injury to personal property which has not been entirely destroyed is the difference between its value at the place immediately before and immediately after the injury"; 17 C.J. 877, § 183.
Evidence was given of the value of plaintiff's automobile just before and immediately after the collision. There was also evidence of the cost of the repairs. Cost of repairs, however, may constitute but one element of damage. Loss of use of the automobile may be an item of damage. The car may not be repaired so as to make it as good as it was before the injury. The repairs may even make the auto better. In any event defendants were not entitled to the requested instruction. No exception was taken or is any error assigned on the part of the instruction given by the learned judge who presided at the trial covering that phase of the case. Assigned error No. 4 is not well taken.
The judgment is affirmed.