Mensing v. Wright

Per Curiam: None of the law questions involved in this appeal is new and they have all been sufficiently discussed in former decisions of the court. The plaintiff’s skating rink was profitable before his business was interrupted, and continued to be profitable when resumed after the interruption. The only change in conditions was that competition was added, and still the business was profitable. Consequently, profits for' the twenty-six days of suspension were neither speculative nor uncertain, and proof of what they were for representative periods of time before and after the suspension formed a fair basis upon which to estimate them. The evidence shows clearly enough that the plaintiff was in personal charge of his business, knew the details [99] of it and knew what his receipts and expenses were, and had his bank books in court. This qualified him to testify directly to amounts, and his summaries were not objectionable either as secondary or as conclusions. An item of $2886 was recently sustained on the same kind of testimony in the case of Larabee v. Railway Co., 85 Kan. 214, 218, 116 Pac. 901. The instructions to the jury were correct and were clear enough. The plaintiff could not recover on account of the digging of the cellar, which was done in a sufficiently careful manner, but only for excavating under his foundation. Due care in going under his foundation, however, required such an excavation of the cellar and such other precautions as would prevent the building from collapsing. The amount of the verdict does not indicate passion or prejudice. It is simply mistakenly too large. As reduced, it fairly represents the plaintiff’s damages, and a new trial will not be granted to reassess them. It does not indicate that the verdict against one tort feasor is wrong because the jury excuses another who, under the evidence and instructions, was also liable.. The judgment is affirmed.