The opinion of the court was delivered by

In this court, by oral argument and in its brief, the defendant in error challenges the right of the plaintiff to recover upon his petition, on the ground that the Robbs were necessary parties to the action. Without passing upon the merits of this contention, it may be disposed of by adverting to the fact *46that this question was not raised by defendant’s pleadings in the court below, for which reason it must be deemed to be waived. (Gen. Stat. 1901, §§ 4523, 4525.)

Without expressing an opinion as to the extent of the relief which the .plaintiff should be awarded, my associates in this division of the court have determined that plaintiff was entitled, under his petition, to recover at least for the time he necessarily lost while making proper efforts to secure other motive power with which to prosecute his business. The court does not hold that he may be adjudged to receive all he claims as his due, and does not pass on the question as to whether he should be allowed for prospective profits. In the present status of the case that matter is not before us for adjudication. It will suffice to say that if the evidence shall sustain his averments he should recover compensation for the loss actually and necessarily sustained by him through the negligence of the defendant. As he was entitled to prevail in the cause and to have judgment for some amount, the order, of the court sustaining the demurrer was erroneous, and such judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.

(dissenting) : In the opinion of the majority as to the second paragraph of the syllabus and corresponding portion of the opinion I am unable to concur. If plaintiff had been the owner of the engine and it had been wholly destroyed, the measure of his damages would have been its value. Presumably the owner has already been compensated on the basis of a total loss. The fact, if it be conceded, that the plain*47tiff had acquired an interest as a bailee for hire in that which was destroyed could not, I think, operate to enlarge the defendant’s liability. As the court has not expressly held the defendant liable for profits which, but for the accident, might have accrued to plaintiff, I refrain from entering into a discussion of that subject at this time.