S. Franz

S. Franz-Xaver, Prentstraße 30, 82433 Bad, K. Keywords: S. Franz-Xaver, Prentstraße 30, 82433 Bad, K. Appeal instance: OLG Munich, final judgment of 09.03.2022 – 10 U 6476/21 e Reference: BeckRS 2021, 47716

Tenor

1. The defendants are ordered jointly and severally to pay the plaintiff 6.450,03 € plus interest in the amount of 4% from 974,40 € since 26.04.2018 to 20.07.2018, of 5 percentage points above the prime rate from 6.450.03 since 21.07.2018 and from € 275.00 since 29.11.2018 and a further €473.39 plus interest thereon at a rate of 5 percentage points above the prime rate from 21.07.2018 to pay.

2. The judgment is provisionally enforceable, but for the plaintiff only against security in the amount of 110% of the enforceable amount. The plaintiff can avert the enforcement of the defendants by providing security in the amount of 110% of the enforceable amount, unless the defendants provide security in the same amount prior to enforcement.

3. Of the costs of the dispute, the plaintiff shall bear 19%, and the defendants, jointly and severally, 81. The costs of the former defendant to 1), the … B1. Car rental GmbH& Co. KG, the plaintiff bears.

Decision

The amount in dispute will be 7.960.28 € fixed. The business value of the proceedings against the former defendant 1), the … B1. Car rental GmbH& Co. KG, amounts to 6.450,93 €.

Facts

1 The plaintiff asserts claims for damages arising from a traffic accident that occurred on 25.04.2018 at about 12:40 in the M3. Road in the municipal area of 8. B K. Occurred.

2 The accident involved the plaintiff's son, the witness J. S2., as the driver of the tractor owned by the plaintiff of the brand Fendt, type 260S, registration number G… And the defendant to 3) as driver of the passenger car of the make SEAT Ateca, registered license plate … The owner of the defendant's car is the company Avis Autovermietung C. Gmbh (defendant to 1)).

3 The witness S2. Was driving in an easterly direction out of town and intended to turn left into a driveway. In the turning process there was a collision with the defendant's vehicle, which had started to overtake the tractor.

4 To compensate for the damages incurred by the plaintiff, the 1st defendant paid 3.501,16 €. The plaintiff makes further property damage in the amount of 7.960.28 € and pre-litigation legal costs in the amount of 473.39 €.

5 The plaintiff claims that the witness S2. The defendants claimed that the driver, while repeatedly observing his duty to look back, had set the turn signal in time to indicate his intention to turn. When the plaintiff's tractor was already in the left lane, the third defendant, who was driving at an inappropriate and excessive speed, started to overtake and hit the tractor, which the witness S2. Caused unavoidable accident. The plaintiff claims that he suffered loss of use due to the inability to use the tractor in the total amount of €275.

6 After extension of the claim by written statement dated 08.10.2019 (sheet. 72/75), the plaintiff withdrew the claim in the same amount by written statement of 10.06.2021 partially restored (Bl. 153/155).

7 The plaintiff most recently requested,

I. The defendants are ordered jointly and severally to pay to the plaintiff 6.450.03 to be paid together with interest in the amount of

– 4% from € 974.40 since 25.04.2018 to 20.07.2018,

– 5 percentage points above the respective prime rate from 6450.03 € since 21.07.2018 – alternatively since lis pendens -,

– 5 percentage points above the respective prime rate from € 275.00 since lis pendens.

II. The defendants are ordered to pay the plaintiff pre-trial attorney's fees in the amount of € 473.39 plus interest thereon in the amount of 5 percentage points above the base interest rate since December 21, 2005.07.2018 – in the alternative since lis pendens – to be paid.

8 The defendants applied for,

The claim is dismissed.

9 The defendants claim that the witness S2. Had pulled to the left without warning, in particular without signaling, when the third defendant was already in the process of overtaking at the height of the rear axle of the tractor. You are of the opinion that no compensation for loss of use should be paid for the tractor as a commercial vehicle.

10 The court on 24.10.2019 orally negotiated. It has the file Az: BY1611-002059-16/6 of the police Murnau am Staffelsee enclosed. Made the subject of the oral proceedings. The court took evidence by questioning the witnesses J. S2., H. F. And V. U. For the result of the taking of evidence, reference is made to the minutes of the hearing (Bl. 79/89) referred. In addition, the court has taken evidence by obtaining a written expert opinion of the expert Dr. A3.. For the result of the taking of evidence, reference is made to the expert opinion dated 08.02.2021 (Bl. 104/122).

11 The parties have agreed to a decision in written proceedings. The date corresponding to the conclusion of the oral proceedings was 20.07.2021 determined. For the completion of the facts, reference is made to all pleadings of the parties including annexes and other parts of the file.

Reasons for decision

I.

12 The admissible action is well-founded. The plaintiff has claims for damages against the defendants arising from §§ 7 para. 1, 18 para. 1 StVG, 115 para. 1 no. 1 VVG, 823 BGB in the amount of a further 6.450,03 €.

13 1. The defendant to 1) was solely responsible for the accident.

14 1.1. The court bases its legal assessment on the following facts:

15 The witness S2. Was driving the plaintiff's tractor on the M3. Road at a speed of 35 km/h and intended to turn left into a driveway. At the beginning of the turn, the tractor was already driving at the center of the lane. After looking over his shoulder to the left and setting the turn signal, he turned left in violation of the second duty to look back. During the turning process, the collision occurred with the third defendant, who wanted to overtake the tractor, although the latter was already predominantly on the left lane in alignment with the driveway. At the time of the collision the speed of the vehicle of the defendant to 3) was 85 km/h.

16 1) The court bases its decision on the plaintiff's factual submission insofar as it was not refuted by the taking of evidence. The defendant's argument was made in the dark and is therefore irrelevant.

17 1) In the statement of defense of 11.12.2019 (Bl. 14/16), the defendants submitted the following: "The driver of the defendant vehicle overtook the slow-moving tractor. When he was already at the level of the rear axle of the tractor, the latter suddenly pulled to the left without warning, in particular without signaling, and collided with the defendant's vehicle."In addition, they deny that the driver of the plaintiff's vehicle signaled to the left in good time, reduced his speed and checked behind him.

18 However, it is not apparent on which statements of persons involved in the accident the statement asserted by the defendants is based. The driver of the defendant's vehicle, the third defendant, was neither formally questioned by the police, nor did he appear, despite being summoned to do so by the court, at the hearing on 24 March 2009.10.2019 appeared. The defendant's trial representative also did not receive any feedback from the third defendant (cf. Bl. 80). The facts described by the police inspection Murnau are extremely scarce and do not receive any further details about the course of the accident. It is only mentioned that with regard to the turn signals on the tractor, there are different statements of the parties involved in the accident, without elaborating in what way the statements differ.

19 Instead of disputing with ignorance the plaintiff's submission insofar as it contradicts the documented findings, the defendants arbitrarily made factual assertions without any tangible indications into the blue or in the form of a statement of fact. At random. Their submission is therefore irrelevant (Musielak/Voit/Stadler, 18. Aufl. 2021, ZPO § 138 Rn. 6, 13). Therefore, the legal evaluation is to be based on the plaintiff's statement, unless it was refuted by the result of the taking of evidence. Therefore, it can be assumed that the witness J observed the first duty to look back as well as the timely setting of the direction indicator. S2. To go out.

20 1) In addition, the result of the taking of evidence also speaks for the setting of the turn signal. The witness F, who was not involved in the accident., who observed the collision, stated that at the time of the collision he saw the plaintiff's turn signal illuminated. The defendants have not denied with ignorance that the witness S2. The turn signal was set in time.

21 The witness U. Stated as a hearsay witness that defendant 3) had told her that he had "put the turn signal of the J."This is not to be equated with the fact that the turn signal was not actually set. Finally, on the basis of the explanations of the expert Dr. A3. It is established that the tractor was already in the left lane at the beginning of the turn. Also to this circumstance the defendant to 3) did not refrain from overtaking.

22 1) Based on the findings of the expert Dr. A3., who is known to the court as an experienced expert who always arrives at well comprehensible and balanced assessments, it is certain that the defendant to 3) was driving 85 km/h before the collision and thus exceeded the maximum speed of 50 km/h with approx. Exceeded 35 km/h by far.

23 1.2. The defendant to 3) has behaved grossly contrary to traffic regulations, when he drove the plaintiff's tractor in unclear traffic conditions (§ 5 para. 3 StVO) wanted to overtake. He has exceeded the inner-city speed limit of 50 km/h by more than 35 km/h and thus violated § 3 para. 3 StVO violated.

24 It was recognizable for him at an early stage that the plaintiff's tractor was not driving in the middle of the (imaginary) right lane, but had moved toward the middle while reducing its speed to 20 km/h. Nevertheless, he drove into the collision without braking (S. 7/8 of the expert opinion; Bl. 110/111). Based on these circumstances, the Court is convinced that the defendant to 3), who according to the witnesses was in a time crunch, still tried to "sneak past" the plaintiff's turning tractor. The third defendant acted in gross violation of traffic regulations, because he overtook another vehicle that was clearly turning in order to get ahead more quickly, while exceeding the speed limit by 35 km/h.

25 1.3. The witness S2. Has for his part objected to the compensation payable to him in accordance with § 9 Para. 1 S. He violated the obligation of the driver to pay attention to the following traffic before turning according to § 4 StVO. On the basis of the explanations of the expert Dr. A3. It is established that the witness S2. Violated second duty to look back and therefore did not recognize that the defendant to 3) approached as an overtaken vehicle with a clear excess speed (S. 9 of the expert opinion; Bl. 112). However, in the present case there is only a minor fault of the witness S2. Because during his first rear view he saw the vehicle of the defendant to 3) at a distance of approx. 50 m. The witness S2. Defendant 3) was approaching the vehicle at such a speed. Despite the indication of the intention to turn by setting the turn signal would jostle past the tractor.

26 Without it being relevant for the court's decision, the court points out that – even if one assumes the defendant's assertion as true that the witness S2. If the plaintiff had not indicated his intention to turn by setting the turn signal – such an omission would also not have been causal for the accident. Based on the explanations of the expert Dr. A3. It is certain that the defendant, who was approaching at 85 km/h, could have recognized the intention of the plaintiff's tractor to turn off even without the turn signal being set (cf. S. 11 of the expert opinion, pg. 114).

27 1.4. The fault of the defendant to 3) outweighs the fault of the witness S2 attributable to the plaintiff. And also allows the operating risk of the plaintiff's vehicle to recede.

28 2. The plaintiff is entitled to damages in the amount of 6.450.03 € to.

29 2.1. In total, he suffered damage in the amount of 9.538,45 € incurred.

30 The amount of the repair costs of the tractor, the replacement costs of the tipping body, the expert costs and the lump sum for expenses are undisputed.

31 In addition, the plaintiff is entitled to compensation for loss of use of the tractor in the amount of €275. It is irrelevant whether the use of the tractor described by the plaintiff is private use, since regardless of the classification of the tractor as a privately or commercially used vehicle, the payment of compensation for loss of use can be considered in this case. Even in the case of commercially used vehicles, compensation for loss of use can be considered if the deprivation of use has not been directly reflected in a reduction of the commercial income and a loss of earnings cannot be concretely quantified, for example as a result of personal efforts and waivers by the injured party (Geigel Haftpflichtprozess/Katzenstein, 28. Aufl. 2020, chap. 3 Rn. 196 m.W.N.).

32 This is to be assumed in the present case. The use of a tractor in an agricultural or forestry business is not directly reflected in a financial yield, because a tractor is regularly also used for mere maintenance measures, which are not directly reflected in a reduction of agricultural yields.

33 The amount of the daily loss of use compensation assessed by the plaintiff is reasonable, as is the downtime of 11 days, which is composed of the necessary repair time plus the time for assessing the damage (BGH NJW 2018, 1393 para. 12; Geigel Haftpflichtprozess/Katzenstein, 28. Aufl. 2020 para. 193, chap. 3 para. 193).

34 3. The decision on interest results from §§ 7 para. 1, 18 para. 1 StVG, 115 para. 1 No. 1 VVG, 823, 246, 288, 291 BGB.

35 The decision on costs is based on §§ 92, 269 Para. 3 ZPO. The decision on provisional enforceability is based on sections 709, 708, 711 ZPO.

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