“[t]he reasonableness of the time for which loss of use is to be compensated is as it would appear to an ordinary prudent man under all the circumstances”
How later courts described this case
- “[t]he reasonableness of the time for which loss of use is to be compensated is as it would appear to an ordinary prudent man under all the circumstances”
- damages in negligence action
Written by the judges who cited it.
The opinion
Ott, J.
(concurring in part and dissenting in part) — I concur with the majority that appellants should be granted a new trial, limited solely to the issue of damages.
I do not agree with the majority that the respondent is entitled to have the jury consider the cost of repair of the railroad car and its loss of use as elements of damages, for two reasons:
*472 (1) It was shown that the cost of repair, in the sum of $36,226.40, was almost 15 times more than the full value of the car 6 months before the accident. The rule is that the cost of repair and loss of use are proper elements of damages only where the property is reasonably susceptible of repair. McCormick, Damages § 124 (1935). It cannot be said that this car is reasonably susceptible of repair at a cost of $36,226.40, when its value 6 months before the accident was shown as not to exceed $2,500, and no sum whatever was expended in the interim to enhance its value.
Under similar circumstances, we 'held, in West Coast Transport Co. v. Landin, 187 Wash. 556 , 60 P.2d 704 (1936), that, where the value of a truck was $5,700 before the accident and only $500 after the accident, it had been destroyed.
Applying this rule in the instant case, where the cost of repair is approximately 15 times the value of the property damaged, it must be considered to be destroyed.
(2) The majority hold that the term “market value” means that reasonable sum of money which the property would bring on a fair sale by a man willing to sell, but not obligated to sell, to a man willing to buy, but not obligated to buy. I agree with this definition of market value. Before the Spokane International Railway Company offered the car for sale on the open market, it had inspected this car, which was manufactured in 1909, and found that it would cost approximately $36,000 to repair it for use as railroad rolling stock. The car was then offered for sale on the open market in an “as is” condition.
Six months before the accident, this car was sold by a person willing to sell to a person willing to buy for the sum of $550. Thereafter, the car was offered for sale a second time in its same “as is” condition and sold for $2,500. Applying the willing seller and purchaser test, the car then had a market value of $2,500.
In my opinion, the evidence established that the car in question, in its state of disrepair at the time of the accident, had an “as is” market value, and the respondent is entitled *473 to receive as damages only the full market value of the car on the date of its destruction.
Upon retrial, the jury should be instructed that the measure of damages to which the respondent is entitled is limited to that fair market value which the evidence establishes the car had on the date it was destroyed.
August 31, 1966. Petition for rehearing denied.