McCabe v. Knapp, Stout & Co.
23 Iowa 308
Iowa
1867
Check Treatment
Weight, J.

l. damages: evidence.0 ‘ The errors assigned relate to the admission of testimony, the rule of damages as given to the jury, and the sufficiency of the evidence to warrant the verdict. And of these we shall speak in their order.

1. To several witnesses, the plaintiff propounded this question: “ How does the expense of running two such boats thus freighted and fastened together, compare with running one boat?” The answers were, “Probably a difference of one or two men,” “ Yery little difference,” and the like. This was objected to, because it was, in fact, estimating profits, it being insisted that the collision *311did not require plaintiff to incur any further expenses, but only lessened the amount of ice.

In view of the time of the collision and the nature of the cargo, we think the boats must be treated as a unit. They had been constructed, packed with ice and started together, for the reason that two boats could be run with almost the same expense as one; and if the other boat and freight were impaired in value at the place of the collision, by the loss of one, because, for instance, the entire expense of the voyage would have to be charged to it, thenj why was it not proper to make the inquiry suggested in the question propounded to those witnesses ? The real damage was the difference between the value of the two boats and cargoes before and after the accident. And this is arrived at, not by estimating value at the destined market, but at the place of injury, taking into consideration the value of the cargo and its condition, and all the circumstances upon which the value depended. Thus, suppose five-sixths of the cargo of both boats had been lost; if no market could be found for the remaining sixth at that place, and this would be probable at this season of the year, it would be comparatively valueless, for the expense of its transportation would be almost, if not quite, as great as to take one boat, and would probably exceed its value at its destined market. And, as these two boats were run together, sustaining the same relation to each other as the several parts in each, sustained to all that was therein, constituting unitedly the freight, the property of plaintiffs, it was proper to consider the injury to all or each, by the loss of one.

To assist in this estimate, it would seem quite legitimate to ascertain the relative expense of running one or two boats. Just as though corn, for instance, had been shipped, having a value at Chicago, its destination, but not at Dubuque, and if it would cost relatively more to *312ship one hundred than one thousand bushels, this fact would be proper in arriving at the owner’s damage, when nine hundred bushels had been destroyed by defendants’ negligence. And this upon the principle that each bushel had a relative value — that lost, because of the greater* quantity — that remaining, because of the same connection. So even more clearly would it be with this commodity, which could only be secured at a certain season— could only be shipped at a certain time, and taken to market in a particular manner.

It is further objectéd that a witness was allowed to compare the lost boat with the one saved, and also to state whether it had a value for any other purpose. The objections made in the court below were, that these inquiries were “ irrelevant and improperbut upon what ground we cannot conceive. The first was proper, because evidence had been given tending to show that the boat saved was frail and unseaworthy, and certainly nothing could be more proper than to prove by a witness, cognizant of the fact, that the one lost was best, and therefore probably, if not in fact, well built and seaworthy. The second was so manifestly proper as to scarcely need attention. If it had no value for any other purpose, and ■ its cargo was destroyed without opportunity to supply it, this fact might be shown; and this is more especially true, as the charge of the court pointed out very clearly the duty of plaintiff after the loss, and especially in relation to supplying the lost cargo.

2. — ascertainment of lose. We next come to the instructions. Appellants say that it is the actual loss at the time and place of the accident that is the measure of damages. This was in „ , _ ° 7 T . enect given by the court below, the jury being instructed in the same connection, that they would look at the value of the property “ for the purpose it was adapted to and designed for, and the actual damages sus*313tained from such injury by its loss for such purpose.” And this was proper enough. This was hut saying that they could consider the nature of the cargo, its use and destination. The expense of building such a boat might be say $1,200. It is made for and adapted to shipping ice, perhaps, but nothing else.

Its cargo lost, it ceases to have any great value, unless the cargo can be supplied, and of this there is no pretense. Fifty or one hundred dollars might repair the injury and make the boat as good as before, but it would not restore its value; for this could not at that time and place be disconnected from the freight. The expense of building the boat would be a proper element in estimating its value, though not the sole criterion. And as there was no evidence that it was worth less than its cost, nor that the ice was worth less than the expense of packing it, this much at least plaintiffs were entitled to recover. If the property was worth more than this, then they should have recovered this added value. And while the instructions objected to are not in all respects clear and unambiguous, we do not believe they laid down any other rule than we have thus briefly stated. Especially is this true when they are taken in connection with the other portions of the charge, which are for the most part very plain and direct and all that appellants could reasonably ask.

Some instructions were asked and refused. But as they were completely and entirely covered by what the court had already said, they were properly refused.

a newtbiai,: evidence. 3. Did the evidence warrant the verdict? The jury found, for plaintiff, and a motion for a new trial was overruled. If the loss occurred _ from the negligence of defendants’ employees, without fault on plaintiffs’ part, then, it is conceded, the plaintiffs could recover. If not, then the verdict should have been for defendants. Upon this subject — as also the amount *314of the loss — there was much testimony, the witnesses on either side giving their several versions of the transaction. It is the usual case of conflict, upon a question peculiarly within the province of the jury to determine, with no preponderance — certainly none in appellants’ favor — and we cannot interfere.

Affirmed.