#### J. W. Hunter, Appellant, v. Ricke Brothers, et al., Appellees.

1 Bailments: negligence: evidence. In an action based on the negligence of a stable keeper for the loss of a team by fire in the nighttime, evidence that plaintiff relied on defendant’s statement that he would remain at the stable during the night was immaterial.

2 Destruction of bailed property: negligence: burden of proof. Ordinary care is required of a bailee for hire, and where bailed property is destroyed, the burden is on him to overcome the presumption that the loss arose from his lack of care, but where he shows that the loss occurred through the operation of forces over which he had no control, it then becomes incumbent on the bailor to disprove the asserted cause of loss, or to show that the bailee’s want of care co-operated with the destroying cause.

3 Negligence: evidence. Evidence held insufficient to show negligence by a bailee resulting in destruction of the bailed property.

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      *Appeal from Webster District*Court.— HoN. W. D. Evans, Judge.

Saturday, March 11, 1905.

ActioN to recover the value of a team of horses destroyed by fire while in the possession of defendants as bailees for hire. At the close of all the evidence there was an instructed verdict in favor of defendants, and a judgment against plaintiff for costs. Plaintiff appeals.

*Affirmed.*

*Mitchell & Muckier,*for appellant.

*Healy Bros. & Kelleher,*for appellees.

Bishop, J.

At the time of the occurrence in question defendants were engaged in the conduct of a livery and feed barn for. hire. Plaintiff gave his team of horses into the custody of defendants to be cared for overnight in said bam, and during the night the same were destroyed by’a fire which consumed the barn and its contents.

1. Bailments: negligence; evidence. I. Plaintiff bases his action wholly upon the theory that the destruction of his property was the result of negligence on'the part of defendants, the allegation of the petition being that defendants failed to exercise ordinary care to protect .the property from danger ^ fire. Upon the trial plaintiff' sought to show that in consenting to leave his team in the barn he placed reliance on a statement made to him by one of the defendants to the effect that such defendant was to remain in attendance upon the barn all night. The questions asked were leading in form, and objections made on the ground were sustained. Counsel for appellant, however, contends for error in that *“*the information desired was of .such character that it could not be elicited in any other way except by leading questions.” We are not disposed to this view, but we need not enter upon any discussion of the question, *110as, in any event, tbe rulings involved no prejudice. Under tbe issue tbe sole question in tbe case was whether defendants were negligent in respect of tbeir care of tbe property intrusted to them. Evidence that plaintiff relied upon a statement in effect as contended for, could bave no bearing upon tbe issue as tbus made.

Appellant also complains of error in tbat a question asked of tbe defendant as a witness, having relation to tbe entrances to tbe barn, and bow they were fastened on tbe night in question, was ruled out. As we find tbat tbe existing conditions were subsequently brought fully to tbe attention of the jury, the complaint is without merit.

2. Destruction of bailed property: negligence; burden of proof. II. Tbe ruling upon tbe motion to direct a verdict is complained of as error. It will be noticed tbat tbe motion was made at tbe close of all tbe evidence in tbe case. Such motion was predicated upon tbe theory tbat the burden of proof was with plaintiff to es-tablisb tbe negligence alleged in tbe petition, and tbat there has been a failure to make such proof. Tbe record shows that plaintiff rested bis case solely upon proof of tbe bailment, tbat tbe property bad been destroyed by fire, and a consequent failure on tbe part of defendants to make return of tbe property in response to bis demand. Defendants on tbeir part introduced evidence to tbe effect tbat tbe fire occurred during tbe night, and from some unknown cause. Fairly stated, it is tbe contention of appellant tbat, having made proof of tbe fact of bailment, and of tbe failure to return, there arose a presumption of negligence as matter of law; tbat in such situation tbe burden was cast upon defendants to show ordinary care and diligence on tbeir part to protect and preserve tbe property; and that, having failed in this, as disclosed by tbe record, they cannot be beard to deny liability. Counsel for appellees, on tbe other band, contend tbat tbe presumption of negligence, admitting tbat such arose as contended for, was overcome by proof of tbe fact tbat tbe fire occurred through some un*111known cause, and hence was either accidental or incendiary in character. As the bailment was for hire, and therefore for the mutual benefit of both parties, ordinary care was all that was required at the hands of defendants. *Chamberlin v. Cobb,*32 Iowa, 161. Such a bailee cannot be regarded as in any sense an insurer. *Seevers v. Gabel,*94 Iowa, 75.

Now that a bailee who fails to account for property intrusted to him may be held liable in some form of action for the value thereof, is general doctrine. And it may be conceded that in the greater weight it is the rule of the cases that, where it appears the property bailed is injured, lost, or destroyed while in the exclusive possession of the bailee, the burden is upon him to overcome the presumption arising therefrom that such occurred through a want of ordinary care on his part. *Funkhouser v. Wagner,*62 Ill. 59; *Ouderkirk v. Bank,*119 N. Y. 263 (23 N. E. Rep. 875); *Davis v. Tribune Co., 70*Minn. 95 (12 N. W. Rep. 808); 5 Cyc. 217. But the burden of proving negligence does not change. *Wiley v. Bondy,*23 Misc. Rep. 658 (52 N. Y. Supp. 68); Thompson on Negligence (2d Ed.) 1051. And when the presumption which obtains contemporaneous with the injury or loss, and which, as in this case, is solely relied upon in chief, is overcome by a showing that such injury or loss occurred through the operation of forces not within the control of the bailee, the case must be at an end, unless he who complains shall go farther, and either disprove the asserted cause of loss, or make it appear that a want of ordinary care on the part of the bailee co-operated with such destroying cause. *Dierkson v. Cass Co., etc.,*42 Iowa, 38; *Willett v. Rich,*142 Mass. 356 (7 N. E. Rep. 776, 56 Am. Rep. 684); *Schmidt v. Blood,*24 Am. Dec. 143, and notes; *Claftin v. Meyer,*75 N. Y. 260 (31 Am. Rep. 467); *Railway v. Reeves,*10 Wall. 176 (19 L. Ed. 909); *Railway v. Railway,*26 Minn. 243 (2 N. W. Rep. 700, 37 Am. Rep. 404).

*112
      3. Negligence: evidence.
      *111In this view of the law, and taking the situation as here *112described, we bave as tbe only remaining subject of inquiry whether any evidence was brought forward by plaintiff tending to show negligence on the part of defendants in connection ‘with, the origin or progress of fire by which the property was admittedly destroyed. Our reading' discloses nothing that would have warranted a .submission of the case to the jury. No one pretends to know the origin of the fire, and nothing was shown indicating that it grew out of any cause allowed to exist or set in motion by the defendants. When discovered, the barn was all ablaze, and with it was burned' much property of the defendants as well as the property owned by plaintiff.

We conclude that a case of negligence as alleged was not made out, and accordingly the judgment complained of should be, and it is, *affirmed.*