ON PETITION FOR REHEARING.
STEWART, J.The appellant files a petition for rehearing in this case upon the following grounds: First, appellant contends that this court did not consider or pass upon the following instruction:
“The jury is instructed that there is no law in force in this state requiring steamboats, vessels or other crafts such as the said combination pile-driver and steamboat of the plaintiffs while moored or tied up at their usual mooring *460place or on the shore or dock of any'lake or river to display any light, or other signals, nor was there any such law in force in this state on the 12th day of November, 1906.”
This court did not consider this instruction in the opinion, and held that the same was not erroneous, and counsel in the petition for rehearing does not claim the instruction was erroneous, but argues that by the giving of this instruction the jury were told, in effect, that the failure to display a light or other signal was not to be considered by the jury in determining whether or not the plaintiff was guilty of contributory negligence. This instruction does not so state. It merely advises the jury that there was no law in this state at the time of the accident requiring steamboats or combination pile-drivers, moored at a place or on the shore or dock of a lake, to display any light or other signal, but the jury were not advised by this instruction that the failure to display a light was a matter they could not consider in determining whether the plaintiff was guilty of contributory negligence. The statement in this instruction in no way misled the jury. It simply advised them that the failure to display a light was not per se negligence. The instruction itself is not erroneous, and did not withdraw from the jury the right to consider whether the plaintiff was guilty of contributory negligence in not displaying a light. Whether the failure to display a light was negligence was a question of fact, left to the jury.
It is next complained that the court erred in its conclusion as to the rule of damages. This question is fully considered by this court in the original opinion. This court announced the rule that “in an action for damages caused by a collision to allow the owners of the injured vessel to recover the per diem shown to have been its net earnings for the number of days the vessel was being raised and was undergoing repairs.” In other words, where an accident occurs and it requires time.to raise the vessel and repair it and put it in the condition in which it was before the accident, the owner may recover as damages the earning capacity less expenses during *461such time, and this we understand to -be the correct rule as announced by the weight of authority.
It is next urged that this court has failed to consider Instruction No. 10, requested by the appellant, as follows:
“The Court instructs the jury that although the jury may believe from the evidence that the defendant’s servants were guilty of negligence which contributed to the injury in question, still if the jury further find from the evidence that the plaintiffs were also guilty of negligence which contributed to the injury, then the plaintiffs cannot recover in this suit.”
This instruction was considered by this court in connection with the other instructions, especially the instruction in which the court told the jury “they must find that the collision occurred without any fault on the part of plaintiffs, or either of them, in order for plaintiffs to recover,” and this court held that the instructions, given by the court in effect covered the request made by the defendant, and that it was not error in refusing to give the instruction requested. We understand the rule to be, that the trial court does not err in refusing to give an instruction, although it states the law correctly, where the same statement of the law in effect is given to the jury in other instructions. Appellant also contends that this court overlooked the evidence which tended to prove the value of the articles lost by the sinking of the pile-driver, and that the evidence offered was not sufficient to sustain the verdict of the jury. This argument is based upon the fact that the complaint alleges that the plaintiffs lost, by the sinking of the pile-driver, personal property of the value of $381.65, while the evidence shows the value of such property to be only $321.95. An examination of the evidence discloses that the plaintiff was unable to enumerate separately many of the articles lost or to give their value when testifying as to his loss by the sinking of the pile-driver, but the witness did testify that he had a memorandum of the articles lost and that the value of the same was $381 and some cents. This, in connection with the value of the particular items given by the witness and his statement that some of the items *462he was unable to enumerate or give the value, was sufficient to sustain the verdict of the jury, in the absence of any evidence to the contrary.
We have given further consideration to this ease upon the petition for rehearing and are satisfied with the original opinion rendered. The petition for a rehearing is denied.
Ailshie, C. J., and Sullivan, J., concur.