Independent Oil Co. v. Broadfoot Iron Works, Inc.

ClaeksoN, J. "We think there was error in the court below sustaining the motions for judgment as in case of nonsuit made by defendant. C. S., 567. The evidence which makes for plaintiff’s claim, or tends to support its cause of action, is to be taken in its most favorable light for the plaintiff, and it is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. The evidence introduced by plaintiff was plenary to establish the allegations in plaintiff’s complaint and reply to defendant’s answer. We will not recite the evidence, as the case goes back for trial. The plaintiff, among other things, alleged: “That the defendant failed to exercise that care for the protection of the plaintiff’s property required of it as a bailee, and through its own negligence destroyed plaintiff’s property, and failed to return same in good condition as it agreed to do, all to plaintiff’s great damage, to wit, in the sum of $2,015.” In Beck v. Wilkins, 179 N. C., 231 (232), it is said: “The burden of proving negligence was on the plaintiff, and this burden does not shift, but when it was shown, or admitted, that the machine was not returned by reason of its being destroyed, or stolen, or that it was returned in injured condition, it was the duty of the defendant ‘to go forward’ with proof to show that it had used proper care in the bailment. Therefore, it was error for the court to withdraw the case from the jury, and thus to hold, as a matter of law, that the defendant had exercised proper care.” In Hutchins v. Taylor-Buick Co., 198 N. C., 777 (778), we find: “The appeal presents the single question as to whether the facts of the instant case bring it within the principle announced in Beck v. Wilkins, 179 N. C., 231, 102 S. E., 313, or the rule applied in Morgan v. Bank, 190 *672 N. C., 209, 129 S. E., 585. We think the case is controlled by the decisions in Beck v. Wilkins, supra, and Hanes v. Shapiro, 168 N. C., 24, 84 S. E., 33. The relation of plaintiff and defendant was that of bailor and bailee. Ordinarily, the liability of a bailee for the safe return of the thing bailed is made to depend upon the presence or absence of negligence. In proving this, the bailor has the laboring oar, but it has been held in a number of cases that a prima facie showing of negligence is made out when it is established that the bailee received the property in good condition and failed to return it, or returned it in a damaged condition. Trustees v. Banking Co., 182 N. C., 298, at page 305, 109 S. E., 6. In the absence of some fatal admission or confession, as against a demurrer to the evidence, on motion to nonsuit, a prima facie showing carries the case to the jury. Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503; Speas v. Bank, 188 N. C., 524, 125 S. E., 398.” Swain v. Motor Co., 207 N. C., 755 (758). For the reasons given, the judgment of the court below is Reversed.