139 Ky. 528 | Ky. Ct. App. | 1906
Opinion -of the Court by
Affirming.
Appellee by tbis action in tbe Kenton circuit court sought to recover of appellant damages for tbe de
Appellant’s testimony tended to contradict much of that introduced by appellee, but we are not prepared to say that the jury erred in the verdict returned by them. It follows, therefore, that the lower court properly refused, in passing on the motion for a new trial, to disturb the verdict, upon the ground that it was flagrantly against the evidence. In respect of appellee’s wagon and merchandise, appellant was a bailee for hire, and therefore bound to use ordinary care to protect it from injury while in his possession. So, if by ordinary diligence or care, he could at the time of the fire have prevented its destruction, it was his duty to do so. And if the destruction of the property resulted from the failure of appellant to exercise such care, the loss, to the extent of its value, was properly made to fall upon him, and not upon appellee. Ordinary diligence or care is such as would be exercised by a person of ordinary prudence with reference to his own property, under the same or like circumstances to those which attended the burning of appellant’s stable. 3 Am. & Eng. Ency. of Law (2d Ed.) pp. 746, 747; Jackson v. Robinson, 18 B. Mon. 1.
The instructions given by the trial judge correctly advised the jury as to the law of the case, except that one of them authorized the allowance to appellee of damages for the loss of profits in his business as a huckster, alleged to have been caused by the negligence of appellant in permitting the destruction of his wagon. The jury should not have been allowed to consider such loss of profits in estimating appellee’s damages, nor should he have been allowed to
It is insisted for appellant that as the jury were authorized by an instruction from the court to include in their estimate of damages loss of profits resulting to appellee by the destruction of his wagon, and such damages were improperly allowed by them, the error of the court in giving such instruction was necessarily prejudicial to appellant’s rights. Ordinarily this would be true, but we do not think the instruction in question was prejudicial in this case, as the damages allowed by the jury for loss of profits are not only readily ascertainable, but so insignificant in amount as to require the application of the maxim, “De minimis non curat lex.” In other words, the actual value of appellee’s wagon and merchandise, according to all the testimony on that point, was $352.45, and this sum the jury were compelled to award appellee as the actual damages sustained by him, if they found for him at all; so in awarding him $362.45, by the verdict returned, it is manifest that they allowed him only $10 for loss of profits resulting from the alleged interruption of his business by the destruction of his wagon.
Wherefore, the judgment is affirmed.