#### JOHN SWANN v. CALVIN S. BROWN.

Where the keeper of a livery stable permitted the owner of certain horses to go into the stable, at a late hour of the night, and take them out, in consequence of which, a horse belonging to the plaintiff made his escape and was lost, either by passing out with the other horses, or afterwards, a part of the door being left open, it was IIeld that the owner of the stable was liable for such loss.

This was an action on the oasis for negligence, in keeping the plaintiff’s horse in the defendant’s livery stable, whereby7 he was lost; tried before Bailey, J., at Spring Term, 1858, of Rowan Superior Court.

The defendant kept a livery stable in the town of Salisbury, and agreed with the plaintiff to keep his horse at seven dollars per month. The defendant also kept other horses, belonging to a stage-coach, which were under the management of a driver. Mr. Chunn stated that he, as agent of the defendant, had the superintendence of the stable; that plaintiff’s horse and the stage-horses were put in the stable at night; that the plaintiff’s horse was put in a stall by himself with a halter around his neck, with the other end fastened Jo some part of wood-work of the stable ; that the rope was large and strong ; *151that the stable had a folding door, with upper and lower shutters, which were fastened inside ; that on the next morning he went to the stable ; that the plaintiff’s horse had broken his rope and was gone, and that the stage-horses, the stage and the driver, were also gone ; that he found the horse near the railroad, on which he had been killed by the engine’s running over him ; that a part of the rope was around his neck, and the other part was in the stall where he had been fastened ; that he found the lower part of the door closed and fastened, as he had left it the night before, but the upper part was open. There was no evidence as to the height of the lower part of the door.

It was insisted by the plaintiff’s counsel, that the stable door was left open by the stage-driver when he took out his horses, and that after he left, the plaintiff’s horse made his escape, and that this was negligence.

The Court charged the jury, that if this was so, the defendant would be responsible; but if the plaintiff’s horse was in his stall and fastened with a halter, in the manner mentioned ed by the witness, and while the stage-driver was in the act of taking his horses out, the plaintiff’s horse broke his halter and passed out at the door at the same time the driver was taking his out, he would not be responsible. Plaintiff excepted.

Yerdict for the defendant. Judgment and appeal.

Osborne and Jones, for the plaintiff.

Soy dm, for the defendant.

Battle, J.

The delivery by the plaintiff of his horse to be kept by the defendant in his livery stable, created a bailment, which, being mutually beneficial to the parties, bound the bailee, according to the general rule, to take ordinary care of the properly. “ Ordinary care” is that degree of care, which, under the same circumstances, a person of ordinary prudence would take of the particular thing, were it his own ; and the case will be varied according to the nature of the thing bailed, the purpose for which it was bailed, and the particular eir*152-cumstances under which it was bailed;" Brock v. King, 3 Jones’ Rep. 45; Heathcock v. Pennington, 11 Ire. Rep. 640; Couch v. Jones, 5 Jones’ Rep. 402. It is admitted by the counsel, on both sides, that this is the proper rule, and they differ only in the application of it to the circumstances of the present case. The want of ordinary care, which the plaintiff imputes to the defendant., consisted in the fact, that the upper part of the stable door was left open, whereby, as he alleges, the horse was enabled to escape. There was no direct evidence at what time of the night, or in what particular manner the horse got out of the stable. As it was proved, however, that during the night in question, certain stage-horses, -which were kept there, were taken out, and the upper part of the door was found open next morning, it was a fair inference that the horse of the plaintiff made his escape in consequence of those acts, and he had a right to the instruction of the Court, as to whether that was not negligence in the defendant. It was the opinion of his Honor, and in that opinion we concur,' that, supposing the stage-driver had taken out his horses and left the door open, it was such negligence as made the owner of the stable responsible. Why ? Because, if he permitted other horses to be kept in the same stable, ■with a common door, wdth that of the plaintiff, and to be taken out during the night, it was his duty to have had an agent or servant there, to see that the door was properly closed, so as to prevent other horses from getting out and escaping. It seems to us, that the same reason applies, with precisely the same force, whether the plaintiffs horse got out at the time when the stage horses were carried out, or afterwards. If the defendant trusted to the stage-driver to take out his horses, and to see that none others should get out, then the driver, who was, quoad hoc, the servant of the defendant, was guilty of neglect, either in permitting the plaintiff’s horse to go out wdth his, or in leaving the door open, by means of which he escaped af-terwards ; and for that neglect the defendant wras responsible. There w'as certainly a prima faoie case of a w'ant of ordinary care in keeping the plaintiff’s horse, which required an expía-*153nation from tlie defendant, and we cannot find the explana-nation, in any circumstance, which was proved at the trial; The j udgment must he reversed, and a venire d& novo awarded.

PeR Cueiam, v Judgment reversed.