
    Kentucky Livery Company v. Meyers.
    (Decided December 15, 1922.)
    Appeal from Campbell Circuit Court.
    1. Damages — Wrecking of Automobile. — Where one sued to recover damages for the wrecking of his automobile, it was incumbent upon him to show by competent evidence the market value of the machine if it was destroyed, or the difference between its value immediately before tbe wreck and immediately thereafter, and if he fails to do so and recovers a judgment it will he reversed.
    2. Highways — Motor Vehicles — .Right .of Way — 'Instructions.—Where the accident happens at the intersection of highways the court ■should instruct the jury on the law governing the right of way in substance that a vehicle shall yield .the right of way at the intersection of their .paths to a vehicle approaching from the right unless such vehicle approaching from the right is .further .from the point o.f intersection of their ip&ths than, such first named vehicle.
    JOHN E. SHEPHERD for appellant.
    BARBOUR & 'BAS'SMAN for appellee.
   Opinion op the 'Court by

Judge Sampson —

Reversing.

The automobile owned and driven by appellee, Edward Meyers, on Isabella street in the pity of Newport, on the 16th of October, 1920, was .struck and wrecked by a limousine ear belonging to appellant, Kentucky Livery Company, a corporation, and driven by one of its servants in the performance of its business, and this action was commenced by appellee Meyers ¡against, the livery company to recover damages for the wrecking of the said automobile owned by appellee. The car was an Oakland and it is. charged in the petition to have been worth $800.00 at the time of the ¡accident.

The answer of appellant company was a traverse of all the material averments of the petition and a plea of contributory negligence. The reply traversed all the averments of the plea of contributory negligence. A jury trial resulted in a verdict for .$550.00 in favor of appellee Meyers. Judgment being entered tbereon, the. livery company appeals.

As grounds for a reversal of the judgment appellant urges'(.1) that the court erred in the admission of incompetent evidence offered by the plaintiff ¡below as to the damages sustained to the plaintiff’s-machine; and (2) the court refused to instruct the jury concerning the right of way at the intersection of highways as.provided by the Acts of 1920, page '431.

The plaintiff Meyers testified in his own behalf concerning the accident and -damage done to his -car. Upon the subject of the value of his car and the extent of the damage suffered by it in the collision, the plaintiff said:

“Q. What happened to your machine? A. The ■whole top was -completely sprung. He hit me at the front -door and caved it right in. Q. What iis the condition of that machine now? A. Defendant objects; objection overruled; defendant excepts. Q. What was the condition of the machine right after the -accident? Defend- and -objects; overruled, defendant -excepts. A. Why the machine is a total wreck. Defendant -objects; court overrules; defendant excepts. Q. Were you-able to fun that machine home? A. No, I had to -call up the Oakland garage on Monmouth street and have them tow it in. Q. Have you been able -to use that machine -since? Defendant objects; 'court .sustains objection; plaintiff excepts. In_ the meantime the witness answers, No-, sir. Q. What kind of -machine were you driving;, a limousine, a closed car, a touring* car? Q. What was the value of that machine immediately -before the accident? Defendant objects; q-ourt overrules objection; defendant excepts. A, It was valued a.t $800.00. Q. What was the- value of it after the accident? Defendant objects; -court overrules.; defendant -excepts. A. I guess it was worth about $50.00 or $75.00 after, the accident. Defendant moves that the -answer be -stricken; -co-urt -overrules the motion; defendant -excepts.” -

This was in substance all the evidence given on behalf of plaintiff below as to the value of the automobile, and the loss sustained. This -evidence wa-s not -sufficient to have warranted the court in submitting the case to the jury upon the question -of the value of the automobile nor to sustain the verdict which was returned by the jury; for we have written in the case of C., N. O. & T. P. Ry. Co. v. Sweeney, 166 Ky. 362, that a second-handed automobile, such as the one under consideration, may or may not have a market value, depending upon its condition. In that case we said in part: “It is a matter of common knowledge 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, can not be more than his loss, which in the first instance is its value immediately before its destruction, 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 a jury may set up as the criterion of value, and which may vary in different cases, and with each injury, but has adopted the market value, as the one most tangible and the one which can be most easily and certainly laid hold of. This question has been definitely settled by this court in former adjudications, and is now beyond the sphere of controversy. In the case of Weil v. Hagan, 161 Ky. 292, the rule was laid down as follows:

“In the case of injury to personal property the measure of damage is the difference between its market value before and its market value after the injury.”

There is no word of evidence in the record so far as we have observed tending to prove the market value of the automobile immediately before the accident or immediately after the accident, and that is the measure of damages to which the plaintiff was entitled, if any at all. There was not sufficient evidence to carry the case to the jury nor to support the verdict, and the judgment must be reversed for these reasons.

Complaint is made of the instructions, and 'we believe there is good ground for the objection. The court in substance told the jury that it was the duty of each driver at the time and place mentioned in the evidence to have his automobile under reasonable control, and to give notice of its presence by the customary signals, to keep a lookout ahead for persons and vehicles upon the street and to exercise ordinary care to prevent injury to persons or vehicles upon the highway at that time; and if the jury should believe from the evidence that- the defendant’s agent in charge of said automobile failed to exercise any one -or more of the duties mentioned in these instructions, and toy reason of said failure -and while plaintiff was exercising ordinary care- for his safety, plaintiff’s automobile received the injuries of which he complains the law is for the plaintiff. This instruction did not cover the entire- law of the case. The first part thereof, defining the- ¡duties of the drivers, should have concluded in about this manner: and a vehicle ¡shall yield the right of way at the intersections of their paths to vehicles approaching from-the right, unless such vehicle approaching from the right is further from the point of intersection of their paths than such first named vehicle. This is a part of subsection “>C” of section 10 of chapter 90 of the Acts of the General Assembly of Kentucky, 1920, and this particular subsection is found on page 431 of said volume. Appellant offered -an instruction substantially in terms the same as the foregoing, except that it failed to include that part of the act which reads: “Unless such vehicle approaching from the right is further from the point of intersection of their paths than such first named vehicle.” Although the offered instruction was imperfect, it was sufficient to suggest to the court the necessity of instructing upon this phase of the case.

On another trial of the case the court will instruct the jury as herein indicated,

Judgment reversed.  