Feiss v. Hensch ( 1927 )

OPINION OF COURT.

The following is taken, verbatim, from the oninion.

LLOYD, J.

As to the first alleged error, we are of the opinion that the facts shown by the evidence, uncontradicted and unexplained, are sufficient to warrant the inference that the collision and resulting injuiy were caused by the negligence of defendant in the operation of his automobile. An automobile, in and of itself, is not to be considered as a dangerous instrumentality. It has become a common and necessary vehicle of transportation, both of passengers and freight, and becomes dangerous only because allowed to be out of repair or because of negligent operation. In the absence of evidence to the conti ary, it must be presumed that defendant’s automobile was not in any respecr defective, which leaves the almost necessary inference, if plaintiff’s story of the facts is to be believed, that defendant’s car, at the time and place in question, was being negligently operated, otherwise it would not probably have collided with another automobile in front of it and which had been standing at the street intersection, in obedience to the signal of the traffic officer, for fully twenty seconds befoie the collision occurred. Under facts and circumstances such as these narrated by plaintiff, the owner of an automobile, may not avoid the effect of the inference which a jury may deduce therefrom, by refraining from disclosing the cause of the collision.

As to the second alleged error, this court is of the opinion that the amount of the verdict is manifestly against the weight of the evidence.

If the defendant in error will remit $800 as of the date of the judgment, judgment will be modified accordingly and will be affirmed as modified. Otherwise it will be reversed and the action remanded for new trial.

(Richards and Williams, JJ. concur.)