Opinion filed November 5, 1930.
Bailment — Obligations of Gratuitous Bailees — Negligence — Proximate Cause — Animals.
1. Gratuitous bailees are bound to exercise high or extraordinary degree of care and diligence.
2. In absence of special contract, gratuitous bailees are not insurers of subject of bailment and are only liable for such loss or damage as results from their negligence.
3. Negligence to be actionable must be proximate cause of injury for which compensation is sought.
4. When negligence is established, liability attaches for all injurious consequences that flow therefrom until diverted by intervention of some efficient cause that makes injury its own, or until force set in motion by negligent act has so far spent itself as to be too small for law's notice.
5. Where gratuitous bailees of mare, on farm having barn in which she could be kept, left her in pasture on cold and rainy night, and following morning she was found dead in brook in pasture, depth of brook then being from four to five feet although normal depth was about two feet, held that, if negligence of defendants in leaving mare in pasture were established, such negligence was proximate cause of her death in brook.
ACTION OF TORT for claimed negligence of gratuitous bailees. Plea, general issue. Trial by jury at the March Term, 1929, Chittenden County, Thompson, J., presiding. At close of all evidence, court directed verdict for the defendants. The plaintiffs excepted. The opinion states the case. Reversed and remanded.
The evidence tending to show that defendants as bailees failed to take such care of the bailed property as a careful and vigilant man would have exercised for his own property, question of negligence was for the jury. Carpenter v. Branch, 13 Vt. 161; 2 Harrington's Rep. (Del.) 67; Tinker v. Morrill, 39 Vt. 477, and cases there cited; Gleason v. Beers, 59 Vt. 581.
A gratuitous bailee is bound to the exercise of extraordinary care and is liable for slight negligence, and upon proof of possession in such a bailee for his own benefit and injury to the res a presumption of negligence arises. Apexynski v. Butkiewicz, 140 Ill. App. 375; Wilcox v. Hogan, 5 Ind. 546; Wood v. McClure, 7 Ind. 155; 6 C.J. "Bailments" 1127; Mitchell v. Violette, 203 S.W. 218; Edwards v. Prust, 201 Ill. App. 399.
Burden was on gratuitous bailees to show that failure to return bailed property, under rule of extraordinary care applicable to this class of bailment, was without their fault, and issue was for jury. Scranton v. Baxter, 4 Sanfords N.Y. 5. Gleason v. Beers, supra.
Burden of establishing negligence on part of defendant bailees of a mare, resulting in her death, was upon plaintiffs, and, failing in this, defendant's motion for a verdict was properly granted. Malaney Blakey v. Taft, 60 Vt. 571.
Latham Latham for the plaintiffs.
M.J. Leary and Austin H. Kerin for the defendants.
Present: POWERS, C.J., SLACK, MOULTON, and WILLCOX, JJ.
The action is case to recover the value of a mare that belonged to the plaintiffs and was found dead in a brook while in the possession of the defendants. Trial was by jury. At the close of all the evidence the court directed a verdict for the defendants, to which the plaintiffs excepted.
It appeared, without dispute, that on October 3, 1928, the plaintiffs purchased from the defendants a farm on which the latter then resided and certain live stock, including the mare in question; that the defendants were to have time (how long did not appear) in which to move off the farm, and were to have the mare, without charge, to use in moving; that there was a barn on the farm in which she could have been kept, but that she was left in the pasture the day and night of October 18, when it was cold and rainy, and the following morning was found dead in a brook in said pasture; that the normal depth of the water in this brook is about two feet, and that its depth at the time the mare was found therein was from four to five feet.
The plaintiffs contend that the defendants were gratuitous bailees of the mare, since the bailment was for their sole benefit. This is not questioned by the defendants, so we treat that as an established fact.
The plaintiffs further contend that as such bailees the defendants were bound to exercise a high or extraordinary degree of care and diligence in caring for the mare. This is true. Schouler in his 1905 edition on Bailments, at page 28, in speaking of this class of bailees, says: "The bailee is bound to exercise what is called great, or more than ordinary diligence, and to respond for every loss which is caused by even slight negligence on his part." To the same effect are Elliott on Bailments (2nd ed.) par. 40, and Story on Bailments (9th ed.) par. 237. In the absence of a special contract, however, such bailees are not insurers of the subject of the bailment, and are only liable for such loss or damage as results from their negligence.
The question is whether the death of the mare was due to even the slight negligence of the defendants. The negligence charged in the declaration is that she was left in the pasture, in the rain and cold, the day and night of October 18, and by reason thereof became hungry, numb and cold, and lost her way and fell into a swollen brook and was killed.
There is no evidence that because of the condition of the weather on the day and night of October 18 the mare became hungry, or numb, or cold, or lost her way, but the fact that she fell into the brook and was drowned was not disputed.
The evidence regarding the condition of the weather on the day and night of October 18 was such as to entitle the plaintiffs to go to the jury on the question of whether the defendants exercised the care and diligence required of them in leaving the mare in the pasture at that time. But unless it can be said, in the circumstances, that such negligence, if found, was the proximate cause of the mare's death the action of the court in directing a verdict must be sustained, because the law is well settled that negligence to be actionable must be the proximate cause of the injury for which compensation is sought. Woodcock's Admr. v. Hallock, 98 Vt. 284, 127 A. 380. Much difficulty is sometimes experienced in the application of this rule since no test has been or can be formulated that will solve the question in every case. This was recognized by Judge Pierpont in Stickney v. Maidstone, 30 Vermont at page 741. As is said in Mayor v. Foltz, 133 Md. 52, 104 A. 267, 268: "It is by analysis and synthesis, rather than by definition that the distinction between proximate and remote cause must be made."
It is a well-established rule that in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable sequence of the negligence or the wrongful act, and that it was such as might, or ought to, have been foreseen in the light of the attending circumstances. But this rule is no test in cases where no intervening efficient cause is found between the original wrongful act and the injurious consequences complained of, and in which such consequences, although not probable, have actually flowed in unbroken sequence from the original wrongful act. Stevens v. Dudley, 56 Vt. 158; Gilson v. Delaware Hudson Canal Co., 65 Vt. 213, 26 A. 70, 36 A.S.R. 802. When negligence is established, liability attaches for all the injurious consequences that flow therefrom until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice. Woodcock's Admr. v. Hallock, supra; Ide v. Boston Maine R.R., 83 Vt. 66, 74 A. 401; Mobus v. Waitsfield, 75 Vt. 122, 53 A. 775; Gilson v. Delaware Hudson Canal Co., supra; Stevens v. Dudley, supra.
This case is similar to Wilder v. Stanley, 65 Vt. 145, 26 A. 189, 190, 20 L.R.A. 479. There the plaintiff's colt escaped into the defendant's pasture through the defendant's neglect in keeping the line fence between his farm and that of the plaintiff in repair. From the defendant's pasture the colt passed into the pasture of one W where it came in contact with a barbed wire fence and received injuries from which it died. In sustaining a judgment for the plaintiff this Court said: "It was through the defendant's negligence that the colt and barbed wire, causing its death, came together."
Assuming that negligence of the defendants in leaving the mare in the pasture as they did is established, it is not apparent how this case is distinguishable from Wilder v. Stanley. In neither case would the animal have been injured but for the neglect of the defendant, and whether such neglect was the failure to maintain a suitable fence, or failure to keep the animal in the barn when due care and diligence required it, is immaterial. It was through defendant's negligence that the colt and barbed wire came together in the Wilder Case; it was through the defendants' negligence, if established, that the mare and swollen brook came together in the instant case.
Evidence was introduced tending to show a special contract of bailment, but since no advantage therefrom is relied upon in the pleadings, or claimed here, we give that question no consideration.
Judgment reversed, and cause remanded.
NOTE. — THOMPSON, J., being disqualified, did not sit.