
    James Rutherford, Appellant, v. Leopold Krause, Respondent, Impleaded with John Geldrich and Others.
    
      Bailment for hire — the liability of each of several bailees for injury to a team,, han'ness and, wagon, presumed, — the fact that only one drives the team does not diseha/rge the .others. ■
    
    In an action by the bailor of a team, harness and wagon against one of several bailees for hire thereof to recover damages for injury done to the property a proof of the hiring and that the property was returned in a damaged' condition creates prima facie a liability on the part of the defendant.
    
      The fact that it was agreed that one of the other bailees for hire should drive the team does not relieve the defendant from liability, in the absence of proof that he was free from negligence in permitting the injury.
    Parker, P. J., and Edwards, J., dissented. •
    Appeal by the plaintiff, James Rutherford, from so much of an order of the Supreme Court, made at the Delaware Trial Term and entered in the office of the clerk of the county of Delaware on the 22d day of March, 1900, as denies the plaintiff’s motion for a new trial made upon the minutes.
    This action was brought by plaintiff against the defendant to recover damages for injury to plaintiff’s horses, harness and wagon, caused, as it is claimed, by the negligence of the defendant, who with others was a bailee for hire thereof. Upon the trial the plaintiff offered jiroof of the hiring of his property by the defendant with others and of the return thereof in a badly damaged condition, and rested. The defendant’s motion for a nonsuit was thereupon granted. A motion was made for a new trial, which motion was denied, and from the order denying the same this appeal is taken.
    
      Robert T. Johnson, for the appellant.
    
      George IF. Youmans, for the respondent.
   Smith, J.:

In volume 3, American and English Encyclopaedia of Law (2d ed. 750), the text reads: “ The rule adopted in the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the. bailee to put him upon his defense. When chattels are delivered to a bailee in good condition and are returned in a damaged state, or not returned at all, the law will presume negligence to have been the cause, and casts upon the bailee the burden of showing that the loss did not occur through his negligence, or, if he cannot affirmatively do this, that at least he exercised a degree of care sufficient to rebut the presumption of it.” The rule stated in the text seems to be sustained by numerous cases in the note cited from different States, including our own. (See, also, Collins v. Bennett, 46 N. Y. 490; Campbell v. Muller, 19 Misc. Rep. 189; Ouderkirk v. Central Nat. Bank, 119 N. Y. 263.) The reason of this rule is apparent. The bailee has the sole possession and custody of the chattel bailed. He cannot return the article to the bailor in a damaged condition, and by his silence defeat a recovery for the damage because of the bailor’s inability to prove how the damage happened. Although the burden of proof may rest eventually upon the plaintiff to establish his cause of action, until some reason is given for the injury the bailee should properly be answerable therefor.

In the case at bar no explanation whatever has been offered by the defendant of the causes of the injury to plaintiff’s property. It is true that it was agreed that Geldrich, another one of the hirers, should drive the team. That of itself, however, does not relieve Krause from all responsibility. As one of the original bailees he is still responsible for reasonable care. Until some explanation of the injury appears from which the jury might reasonably find that Krause himself was free from negligence in permitting this injury, the plaintiff cannot be said to have failed in his cause of action.

The order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concur, except Parker, P. J., and Edwards, J., dissenting.

Order reversed on the law and the facts; and motion for new trial granted, with costs to abide event.  