
    Brannan v. Haldeman, Appellant.
    
      Bailment — Bailee for hire — Horse—Injury to horse — Animals.
    In an action to recover damages for injuries to a horse alleged to have happened while the horse was in the defendant’s possession as a bailee for hire, the court commits no error in charging as follows: “The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.”
    If, in such a case, the evidence is conflicting as to whether the defendant used ordinary care and diligence, the case is for the jury, and a verdict and judgment for defendant will be sustained.
    Argued Oct. 17, 1907.
    Appeal, No. 72, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 3,179, on verdict for plaintiff in case of Michael Brannan v. Edward Haldeman.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a horse.
    Carr, J., charged in part as follows:
    The defendant was a bailee for hire, as it is called; that is to say, the defendant got possession of the horse and paid so much for its use. The rule of law is that he is obliged to use ordinary diligence and care in order to preserve the property; and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.
    Now the facts are that the horse was in sound condition when the defendant received him about six o’clock on the morning of April 3. When he was next seen by his owner on the following morning about ten o’clock, he was lame. What then are the facts showing that he did not use ordinary care in using the animal? It seems that the defendant returned the night before about a quarter before twelve, and instead of taking the horse to its owner, the plaintiff, stabled him that night in his own control. The plaintiff asks you to believe that that is a suspicious circumstance, and that it was because the horse was not at that time in as sound condition as when the defendant received it, so that the defendant did not hunt up the owner or take the horse to stable; and it is a fact for you to consider; the plaintiff also asks you to find that either in taking the horse up the incline or in bringing him down the following morning at the Star Stable, his back was injured. That is a fact for you also to consider, and you will note whether it was the act of a man who was using- ordinary diligence and care in handling the animal.
    Not only that, but when the horse was returned the next morning to the stable, what was the fact? There was no one there. It was returned at an unusual hour, because these men go to work about seven o’clock. The horse was not returned until half-past eight. Again, was it a reasonable and cautious act, and that of a man using ordinary care, to leave the horse in the stable without a caretaker? Even though you take the defendant’s side of the story, that the horse was hurt in its stall, the question of fact for you to consider is, whether or not he did the ordinarily careful thing that a man would do, in leaving the horse in the stall without a caretaker. That to my mind is a material point, and if, under all the circumstances, you believe that the defendant, when he left the horse there without a caretaker, did a thing which an ordinarily careful and cautious man would do, and the horse was hurt in the stall, as the defendant contends, then the defendant is not liable. On the other hand, if you believe the horse was hurt in the stall, and that it was not the act of an ordinarily careful and cautious man to leave it in the stable without someone to look after it, then the plaintiff is entitled to recover.
    February 28, 1908:
    Verdict and judgment for plaintiff for $201. Defendant appealed.
    
      Error assigned was in finding binding instructions for defendant.
    
      Hugh Roberts, with him C. S. MacCain, for appellant.
    
      William C. Gross, with him John F. Halbach, for appellee.
   Opinion by

Oblady, J.,

The dispute between the plaintiff and defendant was purely one of fact, which was passed upon by a jury after a fair submission under an adequate charge of the court. The whole question was fairly summarized in the direction: “The rule of law is that he is obliged to use ordinary dilligence and care in order to preserve the property, and if you find in this case that he has not used ordinary diligence and care, but that the animal was hurt because he did not use ordinary diligence and care, then the plaintiff is entitled to recover. On the other hand, if you find that he did use ordinary diligence and care, your verdict should be for the defendant.” No unusual proposition of law is involved, the facts were clearly stated by but few witnesses, and they have been disposed of by the only tribunal authorized by the law to decide them.

There is no merit in the appeal and the judgment is affirmed.  