recovery, plaintiff's negligence must have materially and essentially contributed to the injury. 2. Automobiles-Damages for injuring-Right to recover for loss of use. In an action for damages for injuries to an automobile in a collision, the owner is entitled to recover the value of the use of the car during the period necessary for its repair, in addition to the damage to the car. 3. Automobiles-Injury in collision-Elements of damages for loss of use of. The elements essential to a finding of damages for the loss of the use of an automobile while it is being repaired ordinarily are the value of the car, its market rental value, less the proportion of that value which will cover the wear and tear and depreciation in its use, and the period of necessary deprivation of its use. The his automobile, in passing over the crossing, was caused to turn from its course, and to run off the crossing, with one of the rails of the railroad track between the wheels of the automobile, when immediately and before he had time to extricate the automobile from its position, one of the defendant's trains, without warning to him, approached at a dangerous rate of speed, and struck the automobile with such force that it was knocked to a distance of several feet and greatly injured and damaged. The trial resulted in a verdiet and judgment for the plaintiff for $650. Upon appeal the judgment was reversed for error in an instruction given by the trial court as to the measure of damages in the case. court instructed the jury that the measure of damages was the difference in value of the automobile before and after it was injured, at the time of the injury. The correct measure of damages, the court of appeals held, was the difference in the market value of the automobile just before it received the injuries and just after it received the injuries. "It is a matter of common knowledge," said the court, "that automobiles in all stages of use and repair are being daily exchanged in barter and sales. If an automobile is totally destroyed, or if an automobile suffers injuries, the damages to the owner from the destruction or injury of the machine, alone, cannot be more than his loss, which in the first instance is its value immediately before its de struction, and, in the second instance, is the difference between its value in its injured condition and its value before the injuries. To fix these values, the law refuses to leave it to the imagination of the owner of the injured property, or to the opinion which the jury may set up as the criterion of value, and which may vary in different cases and with each jury, but has adopted the market value, as the one most tangible and the one which can be most easily and certainly laid hold of." Cincinnati, N. O. & T. P. R. Co. v. Sweeney, 166 Ky. 360, 179 S. W. 214 (1915). Plaintiff sued to recover damages for injuries to his automobile due to the negligence of the defendants. He had judgment for $1,125, which on appeal was reduced to $500. At the trial the lefendants proceeded on the theory that the proper measure of damages was the reasonable cost of repairs, and, over the objections of the plaintiff, introduced proof that the automobile could be repaired at a cost of $125, in such manner as to make it as good as new with respect to service and appearance. It was held on the appeal, however, that the proof having showed an established market for second-hand automobiles, the proper rule as to the measure of damages in the case was the difference between the market value of the automobile just before the injury and immediately thereafter. Alexander v. Al G. Barnes Amusement Co., 105 Wash. 346, 177 Pac. 786 (1919). 4. Automobiles—Injury in collision-Damages for loss of use-Instructions. To enable a jury to determine the amount of damages to be allowed for the loss of use of an automobile during the period necessary for its repair following a collision, there must be some evidence of the pecuniary value of that use, and an instruction that, if the circumstances and extent of the ordinary use of the car by its owner were established by evidence, the jurors might, according to their experience and judgment, fix a proper sum as damages for the loss of such use, was erroneous. In Beaumont S. L. & W. Ry. Co. v. Myrick, Tex. Civ. App. —, 208 S. W. 935 (1919), it appeared that while plaintiff was crossing over the defendant's track at a public crossing the automobile in which he was riding was struck by one of the defendant's passenger trains. Plaintiff recovered a judgment against the railroad company for personal injuries sustained and also for the damage to his automobile. The judgment was upheld on appeal, the court, on the question of damages recoverable for the injuries to the automobile, stating that the measure of damages was the difference in the market value of the car immediately before and immediately after the injury to it. In the case of McDonell v. Lake Erie & W. Ry. Co., 208 Ill. App. 442 (1917), it appeared that while the plaintiff was crossing the defendant's railroad at a highway crossing, her automobile in which she was riding was struck by a freight train of the defendant, and plaintiff and her automobile were injured. Plaintiff sued and had a verdict and judgment for $1,400, and upon appeal the judgment was affirmed. Upon the question of the measure of damages as to the automobile, the trial court stated the rule of damages to be the difference between the fair cash market value of the automobile before it was injured and its fair cash market value after it was injured. The defendant argued that this was erroneous, and that the true measure of damages was the cost of the necessary repairs. The court upheld the instruction as applicable to the instant case in view of the fact that the evidence showed that the car was practically a wreck and incapable of being repaired and restored to its former condition for less than the diminution in value of the property as injured. The court, however, stated the general rule to be that the measure of damages for injuries to personal property by the negligence or wrongful act of a defendant is the reasonable cost of the necessary repairs where the property is capable of being repaired to the advantage of the defendant. Plaintiff recovered a judgment for damages to his automobile as the result of a collision between plaintiff's car and an automobile belonging to the defendant. Plaintiff had judgment, but the judgment was reversed on appeal for error of the trial court in its instruction to the jury as to the measure of plaintiff's damages. The jury were told that if they found for the plaintiff they might allow him the difference between the reasonable market value of the car just before the accident and its value immediately thereafter; also all reasonable expenses incurred by plain. tiff in a reasonable effort to preserve or restore the property injured. In holding this instruction erroneous the court of appeals said: "In a case like the one before us, in measuring the damages to an automobile, the basic rule is just compensation for the actual loss sustained, and therefore plaintiff was not entitled to recover for the difference in the market value of the car immediately before the accident and immediately thereafter, and, in addition, the cost of repairing the automobile so as to make it, as near as possible, as good a car as it was before the accident; for to permit him to make 5. Damages Injury to personal property-Cost of repairs as proper measure. When the damage to personal property is less than a complete loss, the measure of recovery is the difference in the value between the property before and after the injury, with interest from date of loss, and, if repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss. 6. Appeal and error-Affirmance upon remittitur of damages erroneously included. In an action for damages for injuries to an automobile in a collision, where both of such recoveries would be contrary to the rule that in a suit for damages one cannot be compensated twice for the same loss. Plaintiff was entitled to recover the difference in the reasonable market value of the automobile immediately before the injury and immediately thereafter, the cost of preserving the car, and loss of use, if any, of the car for a reasonable period of time until it could be repaired, or for a reasonable repair bill and the amount, if any, of the deterioration of the repaired car, being the difference in the reasonable market value of the car immediately before the accident and the reasonable market value of the same after it had been repaired, and also for the cost of preserving the car and for loss of use, if any, of the same for a reasonable period of time while it could have been repaired, but he could not recover for both." Gilwee v. Pabst Brewing Co., 195 Mo. App. 487, 193 S. W. 886 (1917). The case of Morgan Millwork Co. v. Dover Garage Co., 7 Boyce (30 Del.) 383, 108 Atl. 62 (1919), was an action to recover damages for injuries to an automobile which plaintiff's agent had placed in defendant's garage for safekeeping over night. The garage keeper permitted the car to be taken out during the night without the knowledge or consent of the agent and it was damaged while in the possession of the parties who took it out. There was a verdict for the plaintiff, the court charging the jury that the measure of plaintiff's damages, if they found for the plaintiff, was the difference between the value of the automobile immediately before, and its value im mediately after, it was damaged, with interest from the date of the damage. In Coffin v. Laskaw, 89 Conn. 325, 94 Atl. 370, L. R. A. 1915 E 959 (1915), it appeared that at about 3 o'clock in the afternoon there was a collision between the defendant's motor truck and the plaintiff's automobile. The place of the collision was upon a highway and near the foot of a hill. Just before the accident the defendant's truck was coming down the hill and going westerly at a high rate of speed. When descending the hill the driver saw an automobile standing on the northerly side of the road at the foot of the hill, and swung his car to the middle of the road to avoid it. The motor-truck then skidded and got beyond the control of the driver, and with great force collided, head on, with the plaintiff's automobile, which at this time was on the southerly side of the highway and within 2 feet of the foot path used by pedestrians. There was sufficient room for the motor truck to have safely passed the plaintiff's car had the defendant's truck been operated at a safe rate of speed and in a proper manner. Plaintiff had judgment and the judgment was affirmed on appeal. Upon the question of the measure of damages it was held that the trial court did not err in admitting testimony as to the value of the car before and after the accident, as this testimony could fairly be considered with the other facts in the case from which the court might determine the amount of the plaintiff's damages. Plaintiff had judgment against the defendant for damage to plaintiff's automobile resulting from the alleged negligence of the defendant's em the jury were permitted to find damages for loss of the use of the automobile upon insufficient evidence, and the probable amount included in the verdict for such loss may be ascertained, the judgment will be affirmed upon condition of the remittitur of such sum. Appeal by defendant from a denial of its motion to set aside a judgment in favor of plaintiff for damages to his automobile by a collision. with defendant's truck and for the loss of the use of such automobile ployees in operating one of the defendant's street cars. The trial court refused a request of the defendant for a special instruction to the effect that if the jury were reasonably satisfied from the evidence that the plaintiff was entitled to recover they should award him only the cost of repairs. Since there was no evidence of the value of the loss of use of the machine for a definite, appreciable period it was insisted on behalf of the defendant that the measure of damages stated in the requested instruction was the exclusive rule that should have governed the recovery sought in the action. There was competent evidence tending to fix the value of the machine just before and just after the injury; and the refusal of the trial court of the requested instruction was doubtless due, the supreme court said, to the conclusion that the proper measure of damages was the difference in the value of the machine just before and just after the injury. That, the court said, was the general rule where a chattel had been injured (not destroyed) by the wrongful act of another, and there was nothing in the record to exempt the rights of the parties from the application of the general rule. "The court, it will be noted, set down the general rule, applicable in this instance, as the alternative of the different rule whereby, in a proper case, the measure of damages is the reasonable cost of repair 'to put the property in such condition as it was before'; both rules being alternatively serviceable, in proper circumstances, to effect the law's purpose to fairly compensate for the damnifying result of the wrong committed." The general rule, the court held, was applicable in the instant case in view of the evidence in the case that the automobile, even after the repairs had been made, was not in as good condition for service as it was before. Birmingham Railway, Light & Power Co. v. Sprague, 196 Ala. 148, 72 So. 96 (1916). b. Cost of repairs. In Cooper v. Knight, Tex. Civ. App., 147 S. W. 349 (1912), the plaintiff sought to recover for damages to his automobile resulting from a collision between his automobile and that of the defendants while the defendants' car was being driven by an employee of the defendants. Plaintiff had judgment which was affirmed on appeal. It was held on the appeal that the trial court correctly charged the jury that the measure of damages was the reasonable cost of repairing the plaintiff's car and the difference, if any, in the market value of the car after the completion of the repairs and the market value of the car immediately prior to the accident. Plaintiff brought an action to recover damages for injuries to plaintiff's automobile by reason of the alleged negligence of the defendants. It appeared that a car of the defendant railway company collided with a motor vehicle driven by its codefendant, causing the latter's motor vehicle to be thrown with great violence against the plaintiff's car, which was standing in front of the plaintiff's place of business. A judgment in favor of the plaintiff was affirmed on appeal. An instruction on the measure of damages by the trial court allowed a recovery (1) for the for 51 days. New trial ordered unless plaintiff shall remit that part of the judgment allowed for loss of use of the automobile. For appellant-Samuel E. Hoyt. For appellee-Henry Greenstein. The following are the pleadings in the action: reasonable expenses incurred by plaintiff in repairing the damage to its automobile; (2) for the difference in the reasonable market value of the car immediately before the collision and the reasonable market value of the same after it had been repaired; and (3) for damage to plaintiff by reason of the loss of use of the car for a reasonable period while being repaired. It was argued for appellant that this instruction, in allowing a recovery for the reasonable expenses incurred by plaintiff in repairing the automobile, and also for the difference between the reasonable market value of the automobile immediately before the collision and the reasonable market value thereof after being repaired, permitted a double recovery, and was on this account erroneous. This contention was held to be without merit. Plaintiff, the court said, was entitled to recover, not only the reasonable expenses incurred in repairing the automobile, but if, after the repairs were made, the automobile was not restored, so as to be as valuable as it was prior to the injury thereto, then plaintiff was entitled also to recover the loss thus sustained, being the difference between the reasonable market value of the automobile after being thus repaired and its reasonable market value immediately prior to the injury. Yawitz Dyeing & Cleaning Co. v. Erlenbach (Mo. App.), 221 S. W. 411 (1920). Plaintiff brought suit against the defendant to recover damages to his automobile due to the negligence of the defendant, a paving contractor, in leaving unguarded an excavation in a city street in which the defendant was lay ing a cement pavement under a contract with the state road commission. Upon appeal by the defendant from a judgment for the plaintiff the appellant contended that the following instruction was erroneous: "The court instructs you that, in determining the difference in the market value of any such automobile immediately before and immediately after the alleged damage, you may take into consideration the reasonable cost of repairing the alleged damage caused to any such automobile, and any depreciation in market value of any such automobile, due to the alleged damage complained of, after reasonable repairs had been made." It was held that this instruction was proper. "It is obvious," said the court, that repairs may not restore a damaged car to the condition in which it was before the damage was inflicted, and that after being repaired the reasonable market value may still be less than before it was damaged." Metcalf v. Mellen, Utah, 192 Pac. 676 (1920). Followed in Bergstrom v. Mellen, Utah, 192 Pac. 679 (1920). Plaintiff sued the defendant to recover damages for injuries to his automobile caused by a collision between his car and that of the defendant due, as alleged, to the negligence of the defendant in being at the time on the wrong side of the street and in otherwise improperly handling his machine. A judgment for the plaintiff was affirmed on condition of remittitur of a portion of it. It was held that the trial court properly fixed the measure of damages at the actual and necessary cost of repairs to the automobile plus the difference in the market value of - |