Ref::263 C 599/04
ON BEHALF OF THE PEOPLE
JUDGMENT
In the legal dispute
der *********************************************************,
Plaintiff,
Representative: Attorney Brandl, Neusser Str. 182, 50733 Cologne, K 1100
against
den ***********************************************************,
Defendant 1),
the *** insurance company , ***************************************,
Defendant 2),
Authorized representative: ****************************************
the Local Court of Cologne, Section 263, at the oral hearing on June 7, 2005 by the judge at the Local Court ***
found to be right:
The defendants are ordered as joint and several debtors to pay the plaintiff EUR 1,564.41 plus 5 % interest above the prime rate since February 7, 2005.
The defendants are ordered to pay the costs.
The judgment is provisionally enforceable against security amounting to 120% of the amount to be enforced.
Facts:
On 17.07.2004, the plaintiff’s husband, the witness *** , was driving the plaintiff’s VW Golf car, registration number *** in Cologne on Weißer Straße in the direction of Rodenkirchen. At Weißer Straße 161, he wanted to turn left into the parking lot of the Rewe supermarket. The first defendant following him in the Fiat Punto with the registration number ***, which was insured with the second defendant, hit the plaintiff’s car. The latter suffered a total loss as a result. Defendant no. 2 settled part of the damage incurred by the plaintiff on the basis of a joint liability ratio of the plaintiff of 1/3.
The plaintiff demands full compensation and argues that the witness *** indicated his intention to turn in good time and turned left. When he had to stop before turning due to oncoming traffic, the first defendant drove into the plaintiff’s car almost without braking. According to the statement of damages in the statement of claim, this caused the plaintiff total damages of EUR 3,613.23. The plaintiff based her calculation on a replacement value of EUR 3,500.00 in accordance with a DEKRA expert opinion obtained by her. Since the defendants have only paid EUR 2,048.82 of the total damage of EUR 3,613.23, the remaining amount claimed in the action is still outstanding.
The applicant claims that the Court should,
order the defendants as joint and several debtors to pay the plaintiff EUR 1,564.41 plus 5 % interest above the prime rate from the lis pendens.
The defendants request,
dismiss the action.
They claim that the witness *** suddenly braked hard for no reason. He had not previously set a left-hand direction indicator. There was also no oncoming traffic. The replacement value of the plaintiff’s car was only EUR 3,100.00, at most EUR 3,300.00.
The court took evidence in accordance with the order to take evidence of April 15, 2005. Please refer to the minutes of the hearing of June 7, 2005 for the results of the taking of evidence.
Reasons for the decision:
The complaint is well-founded.
The plaintiff is entitled to full compensation from the defendants, both in terms of reason and amount. It is irrelevant whether the accident was unavoidable for the plaintiff or the witness *** within the meaning of Section 17 (3) StVG. In any case, the entire damage was to be imposed on the defendants via the liability assessment in accordance with § 17 Para. 2.1 StVG. According to this, the obligation to pay compensation and its extent depends on the extent to which the accident was predominantly caused by one or other of the parties involved in the accident. In this assessment of liability, only those circumstances can be taken into account that are admitted or proven. It is certain that the first defendant drove into the plaintiff’s car. This is prima facie evidence that he did not maintain a sufficient safety distance or that he was inattentive. The defendants were unable to rebut this prima facie evidence. The mere fact that the witness *** wanted to turn left into a parking lot with the plaintiff’s car does not indicate an atypical sequence of events. In any case, the testimony of the witness ****, the co-driver of the first defendant, did not indicate that the witness *** was behaving in a manner contrary to traffic regulations and, in particular, that he had suddenly braked sharply for no reason contrary to Section 4 (1) sentence 2 StVO. Insofar as the witness **** stated that the plaintiff’s car had braked very suddenly, this was not able to convince the court that the witness *** had violated Section 4 (1) sentence 2 StVO. The fact that in the event of a rear-end collision, the braking of the vehicle in front appears sudden to the road user behind and also to his passenger should be quite understandable, as otherwise he would hardly have been rear-ended. In this respect, it is ultimately a purely subjective assessment. Ultimately, the testimony of the witness **** also corresponds to this, in that he stated that “at least for us” the car in front of them had braked very suddenly. However, it is clear from the testimony of the witness **** that the first defendant did not maintain a sufficient safety distance. This is because the witness stated that the first defendant was driving behind the other vehicle at a distance of about one car length at a speed of approx. 40 km/h. However, such a safety distance is insufficient. However, such a safety distance is insufficient. The fact that the witness stated that he had not seen a turn signal does not exclude the possibility that the turn signal on the plaintiff’s car had been activated. According to the testimony of the witness ****, the road was also so narrow that it was not possible for the witness *** to get into a clear lane. In this respect, too, no violation of Section 9 (1) sentence 2 StVO by the witness *** could therefore be established. Contrary to the defendant’s assertion, the witness **** also confirmed the plaintiff’s account that there was oncoming traffic. After all this, however, the testimony of the witness ****, the passenger of the defendant 1., was in any case not suitable to refute the statements of the witness ***, who stated that he had already indicated 60 – 80 m before the driveway, braked normally and finally stopped before the defendant 1. drove up. After all this, however, the plaintiff’s operating risk of the plaintiff’s car could at best be determined in the liability assessment pursuant to § 17 para. 2, 1 StVG with regard to § 9 para. 5 StVO. This, however, could be completely subordinated to the vast majority of contributory negligence on the part of the defendant, as a typical rear-end collision was ultimately to be assumed here.
The claim is also justified in terms of the amount. Due to the disputed replacement value, the replacement value of EUR 3,500.00 asserted by the plaintiff was to be assumed. This value was determined by the DEKRA expert commissioned by the plaintiff after inspecting the vehicle, also with reference to the value-forming factors. The meager test report of the company ** alone, without inspection of the plaintiff’s car and without further details, was therefore not suitable to cast decisive doubt on or even refute the findings of the DEKRA expert. The plaintiff can also demand compensation for loss of use. She has claimed loss of use for 10 days. According to the expert’s report, the vehicle was only partially roadworthy until it reached the workshop, i.e. it could no longer be used normally. The expert estimated a replacement period of 10 working days. According to the purchase contract submitted, the plaintiff purchased a replacement vehicle on July 29, 2004, i.e. 12 days after the accident. This means, however, that compensation for loss of use must be paid for the claimed period of 10 days.
The plaintiff can claim interest in the amount awarded in accordance with Sections 286 et seq. BGB.
The procedural ancillary rulings are based on Sections 91 (1), 709 ZPO.
****
Judge at the local court