#### T. P. ASHFORD v. JOHN A. PITTMAN.

(Filed 3 October, 1912.)

1. Livery Stables — Bailee for Hire.

One who stables and feeds horses for others for pay is a bailee for hire.

2; Same — Damages by Fire — Evidence—Negligence—Rule of Prudent Man — Questions for Jury.

In an action to recover damages from the defendant, engaged in keeping a stable for keeping and feeding horses of others for pay, there was evidence tending to show that the defendant built a large fire on his premises, around a pot for heating water for killing hogs, within 30 feet from the stable wherein he kept the horses of plaintiff and others, wherein was stored a large quantity of hay and other combustible matter, when a strong wind was blowing from the fire in the direction of the stables, so that sparks could easily have been thus carried there; that there was no other fire around or near the stables; that the defendant immediately left the fire at the pot burning and unprotected, and a short while thereafter the stables caught and were destroyed, including the plaintiff's horse: Sold, (1) though the evidence *46was circumstantial, it was sufficient to be submitted to the jury upon, the question of the defendant’s actionable negligence; (2) should the jury find that the fire at the pot was the cause of plaintiff’s loss, it would be for them to determine whether, under the facts and circumstances of the case, a’man of ordinary prudence would have built such a fire at the place, and left it there unprotected.

Appeal by plaintiff from Ferguson, J., at Spring Term, 1912, of ONSLOW.

Civil action to recover damages for the alleged negligent death of the plaintiff’s horse by burning. At the close of the evidence a motion to nonsuit was sustained, and the plaintiff appealed.'

D. E. Anderson for plaintiff.

D. L. Ward and Frank Thompson for defendant.

Brown, J.

The plaintiff’s horse was stabled with the defendant for safekeeping as a bailee for hire. The defendant’s stables were on his premises in the town of Swansboro, and in them the defendant had been keeping horses for stabling and feeding for pay for the plaintiff and others.

On 13 December, 1910, the stables were burned and the plaintiff’s horse was destroyed by fire, caused, as alleged, by the negligence of the defendant.

The liability of a bailee f,or hire for the failure to use ordinary care in the keeping of the property committed to his charge is too well settled to need the citation of authority. Jones on Bail-ments, 5; 3 A. and E. Ency., 742.

The only assignment of error presents the question as to whether there is any evidence of negligence.

The evidence tends to prove that on the morning when the stables were burned the defendant caused to be-built a large fire around a pot to heat water for hog killing; that this fire was built within 30 feet of the stables in which the defendant had stored a large quantity of hay and other combustible matter; that a strong wind was blowing at the time very nearly in the direction of the stables, so that sparks from the fire could easily reach them; that there was no other fire around or near the stables except the one built around the pot; that immediately *47after building tbe fire tbe defendant went away and left it unprotected and unguarded; that after tbe defendant went into bis bouse, in some little while tbe cry of “Fire” was beard, and tbe defendant ran out and found tbe stables on fire. Tbe plaintiff’s borse was burned to death in tbe stables.

No evidence is offered which tends in tbe least to explain or throw any light upon tbe cause of the fire unless it caught from tbe fire around tbe pot built.within 30 feet of the stables. It is true that tbe evidence does not x>rove conclusively that tbe stables caught from tbe fire built so near them, but we think tbe evidence is of such circumstantial character that it should be submitted to tbe jury to be determined whether tbe building tbe fire around the pot caused tbe burning of tbe stables.

Circumstantial evidence has frequently been allowed to determine matters of much greater consequence, both criminal and civil. There are a number of cases in our reports where tbe evidence of circumstances has been allowed to go to tbe jury as bearing upon tbe origin of a fire. McMillan, v. R. R., 126 N. C., 726; Aycock v. R. R., 89 N. C., 327; Simpson v. Lumber Co., 133 N. C., 101.

If tbe jury shall determine that tbe building of tbe fire around the pot was tbe cause of tbe burning of tbe 'stables and tbe x>laintiff’s borse, then it will be a question under tbe peculiar circumstances and facts of this case for tbe jury to say whether a man of ordinary prudence would have built such a fire in such a xdaee and under such circumstances.

New trial.