#### Charles A. Wimpfheimer, Appellant, *v.*The A. T. Demarest & Company, Respondent.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Negligence — action to recover damages for — evidence — upholstery of body of automobile.

The plaintiff, in an action to recover damages for the negligence of defendant in permitting the upholstery of the body of plaintiff’s automobile to become moth-eaten and broken during the time it was stored with defendant, on proof of the delivery to defendant of the auto body in apparently good condition and its return in a damaged condition, and on proof, by an expert witness, that by the adoption of customary and usual methods of caring for the car and reporting to the owner when the existence of moths was discovered the body would not have been so damaged, makes out a *prima facie*case of negligence on defendant’s part, unless the latter shows that the damage resulted from causes for which it was not responsible.

The plaintiff was entitled to go to the jury on the issue whether defendant had exercised reasonable care in safeguarding plaintiff’s car, and a dismissal of the complaint was error.

Appeax by plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of Mew York, borough of Manhattan, fifth district.

James, Schell *&*Elkus (Joseph M. Proskauer and Bussell H. Battel, of counsel), for appellant.

Morris & Plante (Guthrie B. Plante, of counsel), for respondent.

*172Guy, J.

Appeal by plaintiff from a judgment dismissing the complaint at the close of' plaintiff’s case. The action was brought to recover damages for negligence of the defendant in permitting the upholstery of the body of plaintiff’s automobile, which was stored with defendant, to become moth-eaten and broken during the time it was stored with defendant. Plaintiff proved that when the auto body, a high class French body, was stored with defendant in April or Hay, 1908, it was apparently in perfect condition as far as the upholstery was concerned, and the woodwork was in good condition, except for simple wear and tear; that it remained with defendant until December, 1911, a period of about three years, and when redelivered to plaintiff was broken in places and the upholstery moth-eaten so as to render it worthless. Plaintiff called an expert witness, who testified as to the fair and reasonable cost of repairing the body of the car including the upholstery. On the cross-examination of this witness, he admitted that it was possible that an inspection at the time of the delivery of the auto body would not have shown whether there were moths in the upholstery or not; that it was possible there were moth eggs in the upholstery then. This witness further testified, however, that the proper method of procedure for the warehouseman was to inspect the body of the car from time to time and, if he discovered moths, to notify the owner and get permission to do the necessary work to get rid of them, which would consist of brushing the cloth constantly and saturating it with turpentine; that it is not a common thing for moths to be in hair when the body is in use unless the hair is greasy; that the condition of the auto body when it was taken away was such as to indicate that it had not been brushed.

At the conclusion of plaintiff’s case, the court dismissed the complaint, stating that it did so because: *“*From the testimony of the expert put on the stand by the plaintiff it appears that the damage might have been done on either of two theories; that is, either that the moths might have been introduced through the negligence of the defendant in not securing it from contact with other articles in which there were moths, *173or from the fact that the moths were already at the time of the deposit in the interior of the upholstery.”

The dismissal of the complaint was error. Plaintiff having proved the delivery to defendant of the auto body in apparently good condition and the return thereof in a badly damaged condition, and having proved by an expert witness that by the adoption of customary and usual methods of caring for the car, and reporting to the owner when the existence of moths was discovered, the body would not have been damaged to the extent that it was damaged at the time of redelivery to plaintiff, made out a *prima facie*case of negligence on the part of the defendant, which would render defendant liable “ unless the defendant was prepared to show that the damage resulted from causes for which it was not responsible.” Herzig v. New York Cold Storage Co., 115 App. Div. 46. This evidence of the plaintiff might have been rebutted by the defendant showing the degree of care exercised by it, the conditions existing in the garage, the impossibility or improbability of moths frequenting a place where large quantities of gasoline were in constant use, or that it was not customary for warehouses engaged in storing automobiles to inspect them and report their condition to the owners, and by establishing the knowledge of the plaintiff on that point. But these were all matters of defense, the burden of establishing which was upon the defendant, and upon which, even had such evidence been introduced by the defendant, plaintiff was entitled to go to the jury on the issue whether defendant had exercised reasonable care in safeguarding the property placed by plaintiff in its custody.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabuby and Bijub, JJ., concur.

Judgment reversed and new trial Ordered, with costs to appellant to abide event.