Volkmar v. Third Avenue Railroad

28 Misc. 141, 58 N.Y.S. 1021

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Leventritt, J.

The plaintiff’s coach', while being driven by. one Michael Reynolds through Thirty-eighth street, in a westerly direction across Third avenue, was damaged in a collision with a north-bound cable car of the defendant company.

Reynolds, the plaintiff’s hostler, was the only witness who testified as to the circumstances of the accident while the plaintiff relied exclusively on his own testimony as to the amount of the damage. The defendant, resting on the plaintiff’s case, called no witnesses but moved to dismiss the complaint on the ground, among others, that the damage sustained by reason of the injury to the coach was not adequately proven. A reference to the testimony shows that the exception taken to the court’s refusal to grant the motion presents a good ground of reversal.

The plaintiff testified specifically as to what parts of the coachí suffered in the collision, and how much he paid for each item of repair. But beyond the mere fact of the amount paid, there is no evidence of the value of the repairs or that the sums actually expended were either reasonable or necessary. Such proof has been! held to be entirely insufficient to afford a proper basis upon which! to estimate money damages. Gumb v. Twenty-third Street R. Co., 114 N. Y. 411; Kennedy v. McKone, 10 App. Div. 88; Wyckoff v. Taylor, 13 App. Div. 240; Schimpf v. Sliter, 64 Hun, 463; Lynch v. Kluber, 20 Misc. Rep. 601. Cost of repair is admissible as an element tending to show value, but it loses its probative force when standing alone and must be supplemented by testimony that such cost represented the reasonable worth of the necessary repair.

The plaintiff’s attempt to show the usable value of the damaged coach for the period during which it was being restored, similarly failed in that it furnished only uncertain data that required the jury to guess and speculate. While it seems that in the case of articles of constant and daily use, usable value, being well known and readily ascertained, constitutes a proper element of damage (Redmond v. American Mfg. Co., 121 N. Y. 415; Allen v. Fox, 51 N. Y. 562; Jackson Iron Works v. Hurlbut, 158 N. Y. 40), the loss sustained by the deprivation must not be left to conjecture.

As there must he a reversal we deem it unnecessary to pass upon the very close question whether or not there was contributory negligence, and we shall, therefore, leave it to a new trial to clarify the rather confusing testimony as to distances. The judgment will be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.