
    John P. Murphy, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Damages — Measure for torts — Loss of or injuries to property—*• Injuries to automobile.
    Where, in an action for damages to plaintiff’s automobile resulting from an accidental Collision with a trolley car, it is shown that, while the machine was being repaired, he neither used nor had need of one, evidence as to the rental value of an automobile during such period is inadmissible on the question of damage.
    Evidence as to the cost of repairs to the automobile other than those attributable to the accident is inadmissible.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, sixth district, borough of Manhattan.
    James L. Quackenbush (William E. Weaver of counsel), for appellant.
    Kneeland, LaFetra & Glaze, for respondent.
   MacLean, J.

From the testimony of himself, his companions and his chaffeur, it would appear that, when the plaintiff’s automobile, running at six Or seven miles an hour westerly along One Hundred and Twelfth street, reached the easterly house line of Eighth avenue, a south bound trolley car was seen 125 feet above the crossing, coming’ at fifteen to twenty miles an hour (twenty-two to thirty feet a second; that the automobile was not stopped, but proceeded at the same rate until the chaffeur put on the brakes and turned the ear southward just before colliding with the car about ten feet south of the northerly crossing. From the relative positions of the automobile and the oar when both were still just after the collision, and from the locations of the damage done to them severally, it would seem rather that the automobile ran into the car than the contrary, heightening the inference of contributory negligence on the part of the person managing the automobile, venturesomely continuing its course in the front of the car coming at high, even runaway speed. That phase of the contentions presented upon this appeal need not be further mentioned, as the evidence may be changed on a new trial which is necessary by reason of erroneous admissions, against objections and over exceptions, of evidence as to elements of damages provable in this case, namely, testimony as to the rental value of an automobile during the time the plaintiff’s was being repaired, although he neither used another nor showed that he had need of one,' and the testimony as to the costs of repairs other than those shown to be due to the accident.

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

G-ildersleeve, J., concurs.

Bischoff, J.

(concurring). The theory of the plaintiff’s case, upon the proofs, was that his automobile was not sought to be driven across the track in front of the on-coming car. Agreeably to this theory, there was no reason for the defendant’s servant to assume that the automobile would not be stopped in accordance with the chaffeur’s evident intention, and the evidence for the plaintiff showed that there was ample space within which it could have been stopped after the chaffeur made his apparent choice not to take the right of way.

There should, therefore, be a new trial, upon the ground that the judgment is contrary to the evidence.

As to damages, it appears that some items of expense for repairs were allowed which were not traced to the consequences of the accident; but, for the purposes of the new trial, it may be noted that the plaintiff, if deprived of the usable value of his automobile for a time, through the defendant’s negligence, would be entitled to compensation for the loss, notwithstanding that he did not actually procure another automobile, by hire, during the interval (Volkmar v. Third Avenue R. R. Co., 28 Misc. Rep. 141; Allen v. Fox, 51 N. Y. 562; Mailler v. Express Pro. Line, 61 id. 312, 316; Whitehall Trans. Co. v. N. J. Steamboat Co., 51 id. 369; Jackson A. Iron Works v. Hurlbut, 158 id. 40; Schalscha v. Third Ave. R. R. Co., 19 Misc. Rep. 141), and although the use of the thing injured may have been for pleasure wholly and not for profit, Wellman v. Miner, 19 Misc. Rep. 644. To support this item of damage, proof would, of course, be necessary upon the question whether the automobile had a usable value (Bondy v. New York C. R. Co., 56 Misc. Rep. 602) and what that value was. The mere expense of hiring another vehicle of the same type — where it was not actually incurred — would hardly establish the fact of a known usable value; but that fact would be susceptible of proof by properly qualified opinion. While' error may have been committed in the award of damages for loss of use upon the proofs before the court- below, we cannot say that the item may not he established upon a new trial by the production of competent evidence.

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