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The defendant’s (=def ) car went through a stop sign into an intersection, where the plaintiff (=pl) was trying to get by with his truck. Def signaled to pl to back out of the intersection, which she did. When def drove through, he allegedly damaged pl’s car. Def says that he is unable to know if he hit the car, which he is not willing to concede. In any case, he says, since he warned pl to back out, she is partially responsible for her failure to do so and he should not have to pay more than half of the damages. One witness testified that def’s truck hit pl’s car.
Ruling: Since one witness creates a Torah-level obligation to swear against the testimony and def cannot do so because he claims not to know what happened, beit din accepts that the truck hit the car (Shulchan Aruch, CM 75:12). (This is more compelling because def should have known what happened and photographs of the damage strengthen pl’s assertion.)
The gemara (Bava Kama 48b) arrives at the following rules regarding a collision between passersby that damages both. "If both had permission or both did not have permission - if they both damaged each other, they are obligated. If they were both damaged by each other, they are exempt... if one had permission and the other did not, the one with permission is exempt and the one without permission is obligated." Rashi states that in the case where they damaged each other, they must pay even if it was done inadvertently. Thus in our case, where no one had the clear right of way, pl ostensibly has to pay. In contrast, the Rambam (Chovel U’mazik 6:3) says that when the two are on equal footing and there was a collision, an unintentional damager(s) is exempt. On the other hand, when the damager failed to be as careful as he should have been, the Rambam (ibid.:8) agrees that he has to pay because it is considered like damaging purposely.
In our case, def enabled pl to avoid the collision. The Rambam says that if the damager stopped in front of the damaged, who collided with him, the damager is exempt. If he stopped in an unreasonable way he is generally obligated unless he warned the damaged. We see that the damager’s warning exempts him. However, that is because the damager who warned was passive whereas when the damager rams into the damaged, his warning to the damaged to beware is insufficient.
When one improperly closes off a passageway with his barrels (as pl did) and another breaks the barrels going through, he is exempt (Shulchan Aruch, CM 412:2). However, Tosafot (Bava Kama 32a) says that if the barrels’ owner is present, the damager must pay. Since a momentary closure of the passageway is not significant, the passerby should have told the barrel owner to move and waited for compliance.
Therefore, in this case, def must pay in full.
P'ninat Mishpat (832)
Rabbi Yosef Goldberg
23 - Damages from a Car Accident
24 - A Truck That Hit a Car That Did Not Leave Enough Room
25 - Who Pays for Damages That a Hired Driver Causes to a Third Party
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