Thompson v. Harry W. Smith Auto Livery Co.

L©ES> 0. This action grew out of an automobile collision. It was tried by a jury whose verdict was in plaintiff’s favor. - There was the usual [359] blended motion for judgment or a new trial and defendant bas appealed from a denial thereof. The collision took place on Clifton avenue in the city of Minneapolis. There was evidence from which the jury might find that defendant’s car turned into Clifton avenue about one-half block from where the collision occurred and proceeded east on the north or wrong side of the avenue towards plaintiff’s car, which was coming from the opposite direction; that the driver of plaintiff’s car veered to the south to avoid defendant’s car, which immediately swerved in the same direction, then both cars were swung to the north and came together. In other words, as one of the witnesses expressed it, the two cars zigzagged into each other. The left front fender and wheel of plaintiff’s car were broken and the front axle bent. There was evidence to the effect that both cars were north of the center line of the avenue when they collided. In the main, the testimony of defendant’s driver was contradictory to that given by plaintiff’s witnesses. As usual, each driver attempted to fasten on the other all the blame for the accident. We have frequently remarked that these cases generally present little but pure questions of fact and that the jury’s determination of them, when the verdict is approved by the trial court, will rarely be overturned on appeal. This is such a case and we must decline to interfere with the verdict. Defendant asserts that there could be no recovery because no damages were shown. Plaintiff testified that the reasonable value of his car before the collision wTas $2,300. Asked what its value was in its damaged condition, he answered over objection: “I would say the damage was six or seven hundred dollars.” The car was repaired, but plaintiff and his chauffeur testified that nevertheless it did not run right and ivas hard to steer. There was proof that the reasonable cost of the necessary repairs was $231.86. The jury assessed the damages at $500. We are of the opinion that the proof was sufficient to sustain the recovery of that amount. Satterlee v. Lawler, supra, page 181. Plaintiff, though not an expert, was competent to express an opinion as to the value of his property, Egekvist [360] v. Minnetonka & W. B. Nav. Co. 146 Minn. 474, 178 N. W. 238, and bis answer to the question objected to was equivalent to1 stating that the car was worth $1,600 or $1,700 after the accident, and should stand since defendant did not ask to have it stricken as not responsive or in proper form. Numerous assignments of error are directed to the instructions to the jury. The court used the word “attribute” instead of “contribute” in referring to the acts which led to the collision. This was a verbal inaccuracy not called to the court’s attention as required by the rule of Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754, hence the assignment raising this point cannot be considered. There was no prejudicial error in making reference to the fact that defendant had moved for a directed verdict and that the motion was denied because the court was of the opinion that a question of fact was presented which the jury should determine. . In defining negligence, the court said it was the doing or omitting to do that which an ordinarily prudent and careful person would do under similar circumstances to avoid an accident. The use of the words “to avoid an accident” is criticized. Applying the rule of Steinbauer v. Stone, supra, we hold that if counsel feared that the use of these words might give the jury an erroneous impression as to the law, they should have asked the court to clarify the definition of negligence. Other portions of the instructions challenged by the assignments of error were substantially correct and applicable to the situation disclosed by the evidence. We find no error entitling defendant to a new trial, and, as already stated, there was sufficient evidence to support the verdict in plaintiff’s favor. It follows that defendant’s blended motion was properly denied. Order affirmed.