111 N.Y.S. 469 | N.Y. App. Div. | 1908
The plaintiff delivered- an ermine scarf to the defendant to he cleaned, taking a” receipt therefor. When the plaintiff called for her scarf the defendant was unable to deliver the same, owing to the fact that it had been consumed in a ñre. The plaintiff brought her action to recover the value of the scarf, and upon the trial proved the delivery of the scarf and the failure of the defendant to return the same on demand. The defendant then took the stand, and over the objection and exception of the plaintiff, testified to the fact that a fire in her factory had destroyed its contents. The case was sent to the jury upon the theory that the. defendant’s liability rested upon the question of negligence in her position as a bailee for hire, and the jury found for the plaintiff in the sum demanded, one of the jurors stating that we also find, that the defendant Whs not negligent,” On defendant moving- to get aside tdie Verdict arid
We are of opinion that the motion was properly granted. The gravamen of the action is the negligence of the defendant, and the burden of proof is upon the plaintiff. While she made a grima facie case in showing the delivery and the failure to return the scarf upon demand, the cause of action depended upon whether the defendant had failed to exercise the reasonable degree of care in preserving the scarf which the law imposes upon a bailee for hire, and it was competent for her to show that the loss occurred by reason of a fire upon her premises; to overcome the presumption of negligence by showing a loss through a cause for which she was not to blame. (Stewart v. Stone, 127 N. Y. 500, 506, and authorities there cited.) The fact that in this case it appears that the jury, while finding for the plaintiff, likewise found that the defendant was not guilty of negligence, shows that the decision was not in harmony with the law, and the verdict was very properly set aside.
The order appealed from should be affirmed, with costs. .
Jenks, Hooker, Rich and Miller, JJ., concurred.
Order of the Municipal Court affirmed, with costs.
