Falls v. . Goforth

*503 Stacy, C. J. Tbe appeal presents tbe question wbetber tbe facts bring tbe instant case witbin tbe principle announced in Beck v. Wilkins, 179 N. C., 231, 102 S. E., 312, or tbe rule applied in Morgan v. Bank, 190 N. C., 209, 129 S. E., 585. We tbink tbe case is controlled by tbe decisions in Beck v. Wilkins, supra; Hutchins v. Taylor-Buick Co., 198 N. C., 777, 153 S. E., 397; and Hanes v. Shapiro, 168 N. C., 24, 84 S. E., 33. Tbe relation of plaintiff and defendant was tbat of bailor and bailee. Ordinarily, tbe liability of a bailee for tbe safe return of tbe thing bailed is made to depend upon tbe presence or absence of negligence. In proving tbis, tbe bailor bas tbe laboring oar, but it bas been beld in .a number of cases tbat a prima facie showing of negligence is made out when it is established tbat tbe bailee received tbe property in good condition and failed to return it, or returned it in a damaged condition. Trustees v. Banking Co., 182 N. C., 298, 109 S. E., 6. Tbe case is not like Fortune v. Harris, 51 N. C., 532, where tbe plaintiff’s own evidence exculpated tbe defendant of any negligence, in tbat, tbe horse there loaned fell and injured itself on a stump in tbe common horse-lot surrounding tbe defendant’s stables. Tbe case of Sawyer v. Wilkinson, 166 N. C., 497, 82 S. E., 840, is likewise distinguishable, for there admittedly tbe burning to death of tbe hired mules “was not caused by any negligence of tbe defendant.” Tbe present case is more nearly parallel to Rowland v. Jones, 73 N. C., 52, where a hired horse on being driven a distance of 33 miles in 7y% hours on a very hot day in September was overcome by tbe beat and died, tbe ruling being tbat tbe case was properly submitted to tbe jury. Viewing tbe evidence with tbe degree of liberality required on motion to nonsuit, tbe conclusion is reached tbat it should be submitted to tbe jury. Eeversed.