Ashford v. . Pittman

Brown, J. The plaintiff’s horse was stabled with the defendant for safekeeping as a bailee for hire. The defendant’s stables were on his premises in the town of Swansboro, and in them the defendant had been keeping horses for stabling and feeding for pay for the plaintiff and others. On 13 December, 1910, the stables were burned and the plaintiff’s horse was destroyed by fire, caused, as alleged, by the negligence of the defendant. The liability of a bailee f,or hire for the failure to use ordinary care in the keeping of the property committed to his charge is too well settled to need the citation of authority. Jones on Bail-ments, 5; 3 A. and E. Ency., 742. The only assignment of error presents the question as to whether there is any evidence of negligence. The evidence tends to prove that on the morning when the stables were burned the defendant caused to be-built a large fire around a pot to heat water for hog killing; that this fire was built within 30 feet of the stables in which the defendant had stored a large quantity of hay and other combustible matter; that a strong wind was blowing at the time very nearly in the direction of the stables, so that sparks from the fire could easily reach them; that there was no other fire around or near the stables except the one built around the pot; that immediately *47 after building tbe fire tbe defendant went away and left it unprotected and unguarded; that after tbe defendant went into bis bouse, in some little while tbe cry of “Fire” was beard, and tbe defendant ran out and found tbe stables on fire. Tbe plaintiff’s borse was burned to death in tbe stables. No evidence is offered which tends in tbe least to explain or throw any light upon tbe cause of the fire unless it caught from tbe fire around tbe pot built.within 30 feet of the stables. It is true that tbe evidence does not x>rove conclusively that tbe stables caught from tbe fire built so near them, but we think tbe evidence is of such circumstantial character that it should be submitted to tbe jury to be determined whether tbe building tbe fire around the pot caused tbe burning of tbe stables. Circumstantial evidence has frequently been allowed to determine matters of much greater consequence, both criminal and civil. There are a number of cases in our reports where tbe evidence of circumstances has been allowed to go to tbe jury as bearing upon tbe origin of a fire. McMillan, v. R. R., 126 N. C., 726; Aycock v. R. R., 89 N. C., 327; Simpson v. Lumber Co., 133 N. C., 101. If tbe jury shall determine that tbe building of tbe fire around the pot was tbe cause of tbe burning of tbe 'stables and tbe x>laintiff’s borse, then it will be a question under tbe peculiar circumstances and facts of this case for tbe jury to say whether a man of ordinary prudence would have built such a fire in such a xdaee and under such circumstances. New trial.