
    [No. 6552.
    Decided March 23, 1907.]
    W. H. Weaver, Respondent, v. Montana Stables, Appellant.
    
    Livery Stable Keepers — Fires—Care oe Horses — Question eor Jury. In an action against a livery stable keeper for the loss of horses destroyed hy fire, the question whether the defendant exercised ordinary care in guarding against fires, is for the jury, where it appears that the barn was in a peculiarly exposed position, that the stalls were so located as to make it difficult to extricate horses in case of fire, that defendant had no employee whose duty it was to guard against fires, and that the only employees in the harn on the night of the fire were engaged in their duties so far from the scene of the fire as not to discover it until the alarm was given and the fire so far advanced as to make it impossible to release any of the horses in the part of the barn where plaintiff’s horses were kept; since reasonable minds might differ upon the question.
    Same — Instructions. In an action against a livery stable keeper for the loss of horses destroyed by a fire, a requested instruction to the effect that the defendant would not be liable if the fire was started by a third person is properly refused, where the same is in effect given with the qualification “unless hy the exercise of ordinary care on the part of the defendant” the horses could have been saved notwithstanding the fire.
    Appeal from a judgment of the superior court for King county, Albertson, J., entered May 19, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover the value of horses lost through the burning of defendant’s livery stable.
    Affirmed.
    
      Brown, Leehey <$f Kane, for appellant,
    contended, inter alia, that it was error to instruct the jury as to the negligence of the defendant when there was no evidence of any negligent-act by it. Miles v. Douglas, 34 Conn. 393; People v. Muller, 96 N. Y. 408, 48 Am. Rep. 635; East Line R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13. Am. St. 753; Holt v. 
      
      Spokane etc. R. Co., 3 Idaho 703, 35 Pac. 39; Markland v. McDaniel, 51 Kan. 350, 32 Pac. 1114, 20 L. R. A. 96; Harrison v. Cachelin, 27 Mo. 26; Jonas v. Field, 83 Ala. 445, 3 South. 893; Missouri Pac. R. Co. v. Platzer, 73 Tex. 117, 11 S. W. 160, 15 Am. St. 771, 3 L. R. A. 639; Arkridge v. Atlanta etc. R. Co., 90 Ga. 232, 16 S. E. 81; Swank v. Nichols’ Adm’r, 24 Ind. 199; Duggins v. Watson, 15 Ark. 118, 60 Am. Dec. 560; Hutchins v. Hutchins, 98 N. Y. 56. The plaintiff assumed the risks incident to the location with respect to fires. Knowles v. Atlantic etc. R. Co., 38 Me. 55, 61 Am. Dec. 234; The William, 6 Chr. Rob. (Eng. Adm.) 316; Hobson v. Woolfolk, 23 La. Ann. 384; St. Paul etc. R. Co. v. Minneapolis etc. R. Co., 26 Minn. 243, 37 Am. Rep. 404; Henderson v. Bessent, 68 N. C. 223; Russell v. Koehler, 66 Ill. 459; Seymour v. Brown, 19 Johns. 44; Meridan Fair etc. Ass’n v. North Birmingham St. R. Co., 70 Miss. 808, 12 South. 555; Slaughter v. Green, 1 Rand. (Va.) 3, 10 Am. Dec. 488. A presumption of xxegligence does xxet arise where a bailee takes the same care of the property of others as he does of his own. First Nat. Bank of Carlyle v. Graham, 79 Pa. St. 106, 21 Am. Rep. 49.
    
      Aust Sf Terhune, for respondent.
    
      
      Reported in 89 Pac. 154.
    
   Fullerton, J.

The appellant is exxgaged in the busixxess of conducting a livex-y stable in the city of Seattle. In October, 1905, it x’eceived from the respondent five certain horses, which it engaged to keep, board, and groom for the consideration of twenty dollars per month each. On the xxight of December 24, 1905, the barn in which the horses were kept burned, suffocating, with several other’s, the five horses belonging to the respondent. The x-espondent brought this action to recover the value of the horses, alleging in his complaiixt that they were suffocated because of the negligence of the appellant. The case was tried before the court and a jury, and. resulted in a verdict and judgment for the respondent.

At the close of the trial, the appellant challenged the sufficiency of the evidence to support a verdict for the respondent, and the first error assigned is the ruling of the court refusing to sustain the challenge. The appellant contends that its contract with the respondent, being for their mutual benefit, bound it to take only ordinary care of the property, or that degree of care which a person of ordinary prudence usually takes of his own property under similar circumstances, and that there was no evidence that it did not take such ordinary care of the horses. But, without reviewing the evidence in detail, we think it presented a question for the jury. The evidence introduced on the part of the respondent showed that the livery barn was situated in a crowded district; that it was partially under a Japanese lodging house where fires were maintained; that nearby was a Chinese laundry; that just across the alley, and in close proximity, was a paint shop; next to that a resort or place for smoking opium; and next a Chinese restaurant. As one of the witnesses stated, “the neighborhood was a peculiar one; there were Japs and Chinese and Africans living in the immediate vicinity, all mixed together,” exposing the barn to the trespasses of the homeless and dissolute class who desired a temporary lodging. Testimony was offered, also, tending to show that the manner in which the barn was constructed and the location of the stalls in which the horses were kept was such as to make it extremely difficult to extricate the animals in case of fire. With surroundings such as these, the appellant had no employee or assistant whose particular duty it was to guard against fires. While two of its employees were in the barn on the night the fire occurred, they were engaged in duties so far remote from the scene of the fire as not to discover it until the alarm was given by persons not connected with the barn, and until it was so far advanced as to make it impossible to release any of the animals in that part of the barn where the respondent’s horses were kept. What degree of care amounts to ordinary care depends upon the circumstances of the given case. Much greater vigilance in guarding against firés is required where the barn is in an exposed situation than is necessary where the danger from outside sources is remote or nonexistent. The question of what constitutes ordinary care must then generally be one of fact. It must be one of fact in all cases where the evidence is contradictory, or more than one inference can be drawn from the facts admitted or proved. In the case at bar, it seems to us that it must have been foreseen that a fire would at some time inevitably result from the surrounding conditions; and Avhether the appellant sufficiently guarded against the happening of that event Avas so far doubtful that reasonable minds might reasonably differ upon the question. This being so, the question Avas for the jury, and the court did not err in submitting it to them.

The appellant requested the following instruction:

“The starting of a fire by the negligent act of some third person not under the control and Avithout the knoAvledge of the defendant would not bind the defendant to any responsibility for the plaintiff’s losses.”

The court gave the folloAving:

“The defendant in this case could not be held liable unless the loss of the horses was caused by the failure of the defendant company to exercise the ordinary care which I have said the laAV requires it to exercise, and if you. should find from the evidence that the horses in this case Avere destroyed in consequence of fire which Avas not started by the defendant through any act of negligence on its part, or through any act of negligence on the part of any of the servants of the defendant entrusted Avith the care of this stable — I say, if you should find the horses were destroyed by a fire for the starting of which the defendant Avas not responsible, then the plaintiff cannot recover unless you are satisfied by the evidence that, by the exercise of ordinary care on the part of the defendant company, the horses would have been saved, notwithstanding the fire.”

The appellant excepted to the refusal to give the requested instruction and to the instruction given, but we find no error in the ruling of the court. The requested instruction was embodied in the instruction given, and the instruction given correctly stated the law.

The judgment is affirmed.

Hadley, C. J., Dunbar, Mount, and Crow, JJ., concur.  