#### ALEXANDER S. ROWLAND v. THOMAS J. JONES.

In cases of bailment, what is due care is a question to be decided by the-Court.' Whether the bailee has exercised such care is a question to be decided by the jury. Therefore where A brought an action against B to recover the value of a horse, hired to B: Held, That it was not error for his Honor to charge the jury “ that it was for the jury to say from the evidence whether the defendant had exercised that care which a prudent man would have used with his own property.”

Civil actioN to recover the value of a horse, tried before Clark, J., at Fail Term, 1874, RobesoN Superior Court.

All the facts necessary to an understanding of the case are Stated in the opinion of the Court.

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

W. McL. McKay, for the appellant.

A7. A. McLean and Leitch, contra.

Reade, J.

The defendant hired of the plaintiff a horse and buggy and driver to go from L. to F., a distance of 33 miles, which he traveled in seven hours and a half, on a very hot day in September, and the horse was overcome with heat and died.

The defendant asked his Honor to charge, that there was no such negligence as to make him liable. ITis Honor declined; but charged that it was for the jury to say from the evidence “ whether the defendant had exercised that care which a prudent man would have used with his own property.”

We think this charge was right. What is due care is a question for the Court; and his Honor correctly defined it to be “the care which a prudent man would take of his own.” Whether the defendant took such care depended upon the facts which the jury should find. And the jury found that he did not. The facts are not stated in detail; and at the first blush it does not seem that 33 miles in seven hours is hard *53driving. But then the condition of the road, the supply of water; &c., make a great difference. Deep sand, no water, a heavy load and a hot sun may have exhausted the horse. The testimony was that he was “overcome with heat and died next morning.” And the jury find the fact that the defendant did not take the care which a prudent inan would of his own.

There Í3 no error.

Pí:k Ctjkiam.

The judgment must be affirmed.