#### C. W. FALLS v. ARTHUR GOFORTH.

(Filed 22 November, 1939.)

1. Bailment § 1—

Where the owner of a mule loans the. animal to another for the convenience of such other person in harvesting his crop, the relation of bailor and bailee exists between the parties.

*5022. Bailment § 6—

The burden is upon the bailor to prove negligence on the part of the bailee as a basis of the recovery of damages for the failure of the bailee to make safe return of the property bailed, but such negligence is established *prima facie*by a showing that the bailee received the property in good condition and failed to return it, or returned it in a damaged condition.

3. Same — Evidence that property, at the time it was loaned to bailee, was in good condition and that bailee failed to return same held sufficient to overrule nonsuit.

Evidence that at the time plaintiff loaned his mule to defendant, the mule was in good condition, that defendant hitched plaintiff’s mule, which was a willing worker, to a mowing machine with defendant’s mule, which was a slow worker and failed to pull his share of the load, that defendant worked the mules without rest on a very hot day until plaintiff’s mule fell in harness and died of heat exhaustion, *is held*sufficient to be submitted to the jury in plaintiff’s action to recover the value of the mule, and the granting of defendant’s motion for judgment of nonsuit was error.

Appeal by plaintiff from *Ervin, Special Judge,*at May Term, 1939, of GtASTON.

Civil action to recover tbe value of a mule loaned tbe defendant by plaintiff.

On 22 June, 1938, tbe plaintiff loaned tbe defendant a mule to mow a field of oats. Tbe defendant bitched tbe plaintiff’s mule and one -of bis own to a mowing machine and started mowing about 2 :00 p.m. Tbe field was 726 steps in circumference. Tbe defendant went round and round, in a circle, and did not have to stop to turn around. In about an hour, tbe plaintiff’s mule fell in harness and died of beat and exhaustion.

Sam Childres, witness for tbe plaintiff, testifies that be saw tbe defendant working tbe mules “mighty fast to be as hot as it was. . . . It was awful hot. . . . He slapped at tbe mule (witb a little whip) one time and tbe mule was pulling most of tbe machine. . . . He did not stop at all while I was in sight of them for some 4 or 5 minutes.”

There is further evidence that tbe defendant’s mule was “pretty slow” and would not keep up witb plaintiff’s mule, which was “a smart mule, free to go, . . . could not take a whipping and didn’t need it.”' Also that plaintiff’s mule was in good condition when loaned to tbe defendant.

From judgment of nonsuit entered at tbe close of plaintiff’s evidence,, be appeals, assigning error.

*A. C. J ones and J ohn A. Willcins for plaintiff, appellant.*

*Ernest R. Warren for defendant, appellee.*

*503Stacy, 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.