Opinion
March, 1904.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
It is not claimed that the defendant is responsible for any damage caused by the freezing of the canal alone. If the plaintiff's boat had been unloaded in its regular turn, it would still have been frozen in before reaching any other destination. The only damage which the plaintiff can here recover is the damage which the plaintiff suffered by reason of the fact of the boat being frozen in with the load on. It appears that it was universally necessary to have boats calked in the spring to prevent leakage, whether they be frozen in with the load on or free from the load. The only evidence of damage here is that it cost seven dollars and fifty cents to have the boat calked at Fort Edward in the spring, and that it cost about forty-one dollars to have certain repairs made at Whitehall. There is no evidence in the case that those repairs made at Whitehall were repairs made necessary by the freezing in of the boat with the load on, and there is no evidence that the calking which was done at Fort Edward was any more than would have been required had the boat been frozen in unloaded. Without such proof the plaintiff would seem to have failed to have established any damage for which the defendant here is legally liable. I am unable to see how the evidence as to the rental value of canal boats in the winter time in New York city could be of any assistance to the jury in ascertaining the damage properly chargeable to the defendant. For failure of proof, therefore, of damages for the claimed negligent act of the defendant the plaintiff must be deemed to have failed to have established his cause of action, and the judgment and order must be reversed. All concurred.