
    GILBERT, Appellant, v. HARDIMON, Respondent.
    (168 N. W. 25.)
    (File No. 4274.
    Opinion filed June 11, 1918.)
    1. Damages — Warehouseman, Injury hy. to Automobile — Burden ot Proof, re Negligence — Instruction.
    In a suit against a warehouseman, for damages to plaintiff’s automobile stored with defendant, and for certain missing parts, etc., held, that, as charged hy trial court, when proof was offered tending to show the machine in good condition and all parts and tools were therewith when it was delivered to defendant, the burden was on defendant to show his want of negligence.
    2. Damages — -Warehouseman, Injury hy to Automobile — Sufficiency of Evidence.
    In a suit to recover for injury to plaintiff’s automobile stored with defendant warehouseman, and for certain missing parts, etc., held, that, defendant’s only witness being himself, who personally knew nothing about the care or otherwise taken of the auto, and who disputed none of -plaintiff’s evidence, but testified that none of the articles removed from the car were removed by him or his order, who failed to testify as to condition of warehouse before and after it was broken into a short time prior to removal of the machine, that “we checked everything over and everything was there’’ — the defense was insufficient in law to be considered by the jury: that reasonable men could not differ thereon from the conclusion that the condition of the car was not the result of the breaking into the warehouse.
    Appeal from' file Miinicipal Court of the 'City of SIjoux Fallís. Bom L. E. Waggoner, Judge, Pro Tem,.
    Action hy W. N. Gilbert, against Frank Hardii-mon, to recover damages for injury to his automobile. From, a judgment for dte'fenid'amt, and from1 an order denying a new 'trial, plaintiff appeals.
    Reversed and1 remanded.
    
      Kirby, Kirby & Kirby, for Appellant.
    
      John D. Lynch, for Respondent.
    (i) To point one of the opinion, Respondent oiled: 40 Cy'c. 470-1.
   GATES, J.

Plaintiff stored, an automobile with defendant, a •warehouseman, for several months. On taking it- out of storage certain parts and tools were missing, certain parts broken, and, the machine would not run. In an, action for damages the jury returned a verdict for dfefendlant. From, the judgment and an order denying a new trial, plaintiff appeal's..

The only point necessary to consider is the sufficiency of the evidence to sustain ¡the verdict. As charged' by the ciourt when proof (was offered!, tending to show that the machine was in good condition and all the parts, and tool's were there when, delivered to the warehouseman, the burden was on defendant tcv show his: want oif negligence. The only witness for (the defendant was himself, and he apparently knew nothing about tine car, except that he first saw it several davs after it was placed, in storage. Pie did not testify that he ever made a personal examination of the car, nor dkl he dispute any of the evidence offered on behalf' of plaintiff. After testifying generally as to the care used, he testified that none of the articles removed from from plaintiff’s car were removed' by him or by his order, but that a short time prior to the removal of the machine the warehouse was broken into. He did not testify as to the condition of the car 'before or after the warehouse was broken into', nor did he call any of bis assistants to the witness stand. He also negatived the assumption on his part that the damage occurred! and the missing parts were stolen at the time the warehouse was broken _ into by testifying that, “We checked everything over, and ■everything was there.” We are of the view that the defense was insufficient ini law to be 'Considered by the jury. Tibe faict that the windshield was broken, that a good tire was taken off .and an old! -worn tire substituted', and that the machine would not run, together with «plaintiff’s testimony as to the examination made «immediately thereafter, show, beyond a reasonable doubt, that the condition of the car was not the result olf the breaking intoi the warehouse. Reasonable men could not differ from itiiis roncllusiloar. We think defendant utterly failed to establish a «defense to the «action.

The judgment and order appealed from are reversed, and the cause remandte'di for a new trial.  