2 Daly 389 | New York Court of Common Pleas | 1868
This appeal was argued with great zeal, and it was reserved in consequence of the pertinacity, not censurable, with which defendant’s counsel insisted that it was a case of concurring negligence, in the most favorable view for the plaintiff. On the argument, it was considered as presenting a question of fact on the right of the plaintiff to damages, which was fairly submitted to the jury. They were told that if the plaintiff was guilty of any negligence which contributed to the injury complained of, he could not recover. The testimony being conflicting in some respects on that subject, no other instruction could have been given, and the requests of the defendant predicated of a different condition of
The cross examination of the plaintiff showed that he was competent to give evidence of the damage to the wagon and to the horse. The objection to these inquiries was not to the form of the questions, but to the qualification of the witness to speak on the subject. He had owned between forty-five and fifty horses, and had run a stage line in the West, an experience which certainly qualified him to testify. It was evidence which might receive little or no consideration from the jury, but it could not be rejected. It was not necessary, however, to weigh it against other evidence on the subject furnished by the defendants for they gave none. The same reasons apply to the testimony of Hagar. He had been acquainted with the value of horses for twelve years. He had ridden and taken care of horses.
The evidence of loss of earnings was properly admitted. The defendants destroyed for the time being* the plaintiff’s means of carrying on his trade. It was his duty to replace them within a reasonable time, but the loss sustained ad interim was the natural and proximate consequence of the wrong done him, and as such was recoverable (2 Greenleaf’s Ev. § 256; Bennett v. Lockwood, 20 Wendell, 223; Shang v. Whitehead, 12 Wend. 64; Dewint v. Wiltse, 9 Wend. 325; Walrath v. Redfield, 11 Barb. 368 ; Freeman v. Clute, 3 Barb. 424). In Bennett v. Lockwood (supra), it was held that a bailor could recover for time spent and expenses incurred in searching for property wrongfully taken by a bailee and it was declared in Walrath v. Redfield (supra), that the plaintiffs were entitled to recover the value of the use of their mill during the time they were deprived of it by the defendant’s act. In Freeman v. Clute (supra), the contract was for the construction of a steam engine to be used in manufacturing oil, and damages
Judgment affirmed.