107 Misc. 430 | N.Y. App. Term. | 1919
Lead Opinion
Plaintiff kept his automobile in defendant’s garage under a contract providing that defendant should wash and care for the car, for which plaintiff paid twenty-seven dollars and fifty cents a month. Said garage was a steam-heated garage. Plaintiff had kept his automobile there for about ten years. On December 30, 1917, plaintiff used- his car and returned' it to the garage in" good condition. On January first plaintiff tried to use his car, and found that the water in the cooling system was frozen and that'the'water jacket had burst. To recover the damages' sustained by reason thereof this action is brought.
"The facts .are practically' not-in disputé.'4-Although it" was' •unusually cold weather the defendant ran- the motors of some cars' and emptied the water from the cooling systems of others to avoid freezing but took no measures whatsoever with respect to plaintiff’s car. Defendant apparently seeks to excuse this by
Plaintiff as bailor made' out a prima facie case against defendant as bailee when plaintiff’s proof showed that he delivered the car in good condition to defendant to care for and that when plaintiff called for it within a day or two the car was damaged. Neustadt v. Lehigh, etc., 159 App. Div. 667. It then became the duty of the defendant to rebut this prima, facie case by showing that it used due care as bailee. Wintringham v. Hayes, 144 N. Y. 1. This the defendant, failed to do. When the plaintiff stored his car in a steam-heated garage he had a right at least to expect that the temperature would be above the freezing point. If owing to the severity of the weather the defendant could not keep the temperature above the freezing point although it had done everything that an ordinarily prudent man could do to keep up the temperature, still the defendant would not be relieved from the obvious precaution of either drawing off the water from the cooling system by simply turning the pet cock provided.for this purpose, or taking other obvious precautions to prevent the water from freezing and bursting the pipes. The fact that-the plaintiff had taken with him the key to the ignition system might have some bearing on whether the defendant should have sought to have prevented the freezing by the expedient of running the motor, but would not have excused its neglecting the other obvious pre
The exception of the defendant to the charge of the learned court below wherein the court charged that ‘ ‘ the degree of care that a person has to use is such care as is commensurate with the circumstances of each case,” was well taken and the court should have charged the defendant’s request that the measure of defendant’s liability upon this branch of the case was that degree of care that an ordinarily prudent person would exercise concerning his own property. In a bailment such as is the case at bar that is the proper measure of the care required of the bailee. In Israel v. Uhr, 164 N. Y. Supp. 50, this court said, page 51: “ The duty resting on a bailee in such a case is to exercise a like degree of care in respect of the subject of the bailment as a prudent man in similar circumstances commonly takes of his own goods, and the burden is upon the bailee of showing his compliance with, that duty. Ouderkirk v. Central Nat. Bank, 119 N. Y. 263.”
To the same effect Wilson v. Wyckoff, Church & Partridge, 133 App. Div. 92; affd., 200 N. Y. 561. The duty in the case at bar did not arise out of the obligation resting upon every person not to commit a tort upon his neighbor but upon the obligation arising out of the bailee’s contract and the jury should- have had clearly before them the measure of the defendant’s duty of care. ' ’
It follows that the judgment should be reversed and a new trial-ordered, with thirty dollars costs to the •appellant- tó. abide the event.
Concurrence Opinion
(concurring). I concur for reversal and a new trial.
I am of opinion that the court also erred in charging
Dissenting Opinion
(dissenting). Prior to December 30, 1917, the plaintiff had stored his automobile for a long period of years in a steam-heated garage operated by the defendant, under a contract whereby the defendant agreed to store the automobile and to wash and care for the same. On December -30,1917, .the plaintiff took his car from the garage and after he had used it for some hours returned it to the garage in good condition. On January first the plaintiff found that the water jacket pf the automobile had burst owing to the fact that the water in the cooling system had frozen. Since the defendant ivas a bailee for hire and the undisputed evidence shows-that the automobile was left with it in good condition and was thereafter- damaged while in its care, in the absence of explanation as .to. the cause of the damage, a presumption arises that the damage occurred through the negligence . of the defendant and the burden of producing evidence to rebut this presumption is shifted to the defendant.
The plaintiff claims that this charge is erroneous in that it defines the degree of care required of the defendant as 1 ‘ such care as. a prudent man under the circumstances would use ” instead’of such care- as an ordinarily prudent person would exercise in the same circumstances over his own property -said also in permitting the jury to consider whether the defendant had a right to believe that the plaintiff would either drain the water from the radiator or mix a non-freez
Ordinarily where goods are damaged or destroyed while in the custody of another, the bailor has had no control over the conditions leading up to the damage and could personally take no precautions to avoid such damage, while the bailee has had complete custody and control and could reasonably be expected to take the same care of the goods intrusted to him as he would have taken of Ms own goods. In the present case, the plaintiff’s automobile when left in the defendant’s garage by the plaintiff contained water in the radiator and it contained no mixture to prevent freez
Judgment should therefore be affirmed, with costs to the respondent.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.