No. 743DC494 | N.C. Ct. App. | Jul 3, 1974
The evidence, when taken in the light most favorable to the plaintiff, shows that the possession of the automobile in question by the defendant was that of bailee, under a bailment for the mutual benefit of the bailor and the bailee. The duty of the bailee under those circumstances is to exercise due care, and its liability depends “on the presence or absence of ordinary negligence.” The evidence of the plaintiff made out a prima facie case, and it was error to sustain the motion of the defendant for a directed verdict and dismissal of the plaintiff’s case.
This case is controlled by Insurance Co. v. Motors, Inc., 240 N.C. 183, 81 S.E. 2d 416 (1954), where it is stated:
“A prima facie case of actionable negligence, requiring submission of the issue to the jury, is made when the bailor offers evidence tending to show that the property was delivered to the bailee; that the bailee accepted it and thereafter had possession and control of it; and that the bailee failed to return the property or returned it in a damaged condition....”
Reversed.