(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 sus*240ceptible 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.