
    Edward A. Newell, Respondent, v. Edward C. Smith et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1899.)
    negligence — Damaged wagon — Pay of driver and keep of horse, during repairs, not recoverable.
    Where a wagon is injured by a collision resulting from negligence, the pay of the driver and the keeping of the horse during the period while the wagon was being repaired are not proper elements of damage, as they are not proximate consequences of the act of negligence.
    Appeal from a judgment of the Eighth District Municipal Court, rendered in favor of the plaintiff and against the defendants.
    A. D. Payne, for appellants.
    Edward J. Newell, for respondent.
   Freedman, P. J.

This action was brought to recover damages occasioned by the alleged negligence of an employee of the defendants in driving a team and truck so that a collision occurred with a horse and wagon of the plaintiff, whereby plaintiff’s horse and wagon were injured.

The trial court rendered a judgment in favor of the plaintiff, and an examination of the testimony shows that there was sufficient evidence, both upon the question of the negligence of the ■defendants’ driver, and upon the contributory negligence of the plaintiff’s driver, to make it a question of fact for the determination of the court below.

Neither does there appear sufficient reason for a reversal or modification of the judgment upon the ground that manifest injustice has been done, except in this respect.

Upon the trial the following questions were asked the plaintiff when a witness upon the stand:

“ Q. What was paid for the keeping of the horse during the six weeks the wagon was kept out of use?
Q. How much did you pay the driver while the wagon was laid up and you were unable to use it ? ”

Each of these questions was objected to and the objection was overruled and the defendants duly excepted thereto.

The keeping of the horse and the shoeing was shown to be the sum of $40 and the pay of the driver to have been $72, during the six weeks the wagon was being repaired, and the expense of the repairs to the wagon was shown to be the sum of $65, and the aggregate amount of these items composed the sum for which judgment was rendered in favor of the plaintiff.

It did not appear that either the driver -or the horse was injured or prevented by the accident from being able to perform any duties that might have been required of them during the time the wagon was out of use. The items of pay for the driver and for the keeping of the horse during the period aforesaid were, therefore, improperly allowed. As damages they were not the natural and proximate consequences of the act complained of and were too remote. The' judgment should, therefore, be modified by reducing the amount of recovery to the sum of $65, and as so modified affirmed, without costs to either party.

MacLeax and Leventeitt, JJ., concur.

Judgment reduced to the sum of $65 and affirmed as to that amount, without costs to either party.  