#### JOHN FORTUNE AND RICHARD FORTUNE v. FRANCIS M. HARRIS et al.

Where a horse loaned by plaintiff to defendant, was carried to defendant’s house and placed in the common horse lot, so used for many years, though it was somewhat slanting, and the horse, being nearly blind, and the weather being wet, slipped and fell upon a stump, breaking its thigh, it was Held that these facts did not import such negligence as to render defendant liable for the loss of the property.

ActioN of TRESPASS on the case, tried before Manly, J., at the last Spring Term of McDowell Superior Court.

It appeared in evidence, that the horse was loaned by plaintiffs to the wife of the defendant, Harris, at that time a young woman unmarried, but of full age, to ride to Eutherford on a ■visit to her relations.

The horse was blind in one eye when he was loaned, and when he was returned, about eight days afterwards, the other eye was weeping and partly closed up. The horse was returned by the young woman as she came back from the visit and before reaching her home; but as she was about to walk borne, it was suggested by a member of the plaintiff’s family that she might ride the horse home and bring him back next day ; this was assented to by plaintiffs, and she rode the horse to her father’s, a short distance, and lie was there put into tlie common liorse-lot surrounding the stables, where in passing around the lot, he appeared to have slipped and fallen upon a stump and broke bis thigh; the lot bad been used for many years as a horse lot, but was somewhat, slanting, and it was wet -weather.

There was no complaint made of the treatment of the horse, or of his appearance, when he was first brought back by the defendant, as slie returned from her journey.

Upon the foregoing, as an assumed state of facts, the Court was of opinion there was not proof of such negligent use, or of such want of care, as to make defendant responsible for tlie accident.

The plaintiffs contended, that as the injury had occurred to *533the animal while in the possession of the defendant, that a misuser of it was to be presumed ; but the Court did not think so, especially in the face of the proofs. The plaintiffs, in deference to the opinibn of the Court, submitted to a non-suit and appealed.

Dixon,' for the plaintiffs.

Avery, for the defendants.

PeaRSON, C. J.

It is not necessary for us to enquire, whether, if one borrows a horse, and it is injured so that it cannot be returned in as good condition as when received, the onus of proving how the injury occurred, is upon the bailor or bailee; for admitting that, as the bailment was for the benefit of the bailee alone, she was liable for slight neglect; and admitting also, that the onus of exculpation, by disproving any degree of neglect on her part, was on the defendant, we concur with his Honor, that upon the state of the facts, assumed, she was not guilty of even slight neglect, as the damage was the effect of a mere accident.

PeR CueiaM, Judgment affirmed.