Plaintiff delivered this automobile to defendant, who undertook to make certain repairs - or additions to it at a fixed price to be paid by the plaintiff to the defendant. While the automobile was in the defendant’s custody it was injured, and on the plaintiff’s demand for the return of his automobile with the repairs or additions, such return was refused. As I understand the rule, on the failure to deliver the automobile to the plaintiff a presumption of liability arose, which would entitle the plaintiff to recover unless the defendant established that the return of the automobile was prevented by some misfortune or accident not within the defendant’s control. To meet this burden the defendant undertook to show that the automobile was injured by the fall of an elevator owned and operated by the defendant, and that the fall of that elevator was not due to any negligence of the defendant. Considering the presumption that arose, the nature of the accident, the condition of the elevator owned and operated by the defendant, I think a question for the jury was presented, and as that question was submitted to them, I do not think their verdict should be disturbed.
I, therefore, dissent from the reversal of this judgment.
Laughlin, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.