Where a bailee of goods, although liable to their owner for loss only in case of negligence, fails, nevertheless, upon being demanded, to deliver them or account for such non-delivery, this is treated as prima facie evidence of negligence. It is presumed in such case that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or that he actually retains the goods and by his refusal converts them. (Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363.)
In Hasbrouck v. N. Y. C. & H. R. R. R. Co. (supra, 373) the court indicated that the rule applies equally well to a gratuitous bailment, saying: “ Whether it was a bailee for hire in performing a service incidental to her carriage as a passenger with the obligation of ordinary care, or a gratuitous bailee with the obligation of slight care, the result is the same. In either event, as we held in the case cited, some care was required, yet none was shown. The law required the defendant to return all the property intact, or to explain its loss in some satisfactory way, but it did neither.”
If the bailee fails on demand to deliver the goods or to explain, the presumption of liability arises and if the goods cannot be found it furnishes the imputation of negligence as the cause (Fairfax v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 11); but such presumption is overcome when it is made to appear that the loss was occasioned by some misfortune or accident, such as theft, fire or destruction and then the onus is upon the bailor to prove that this was chargeable to the negligence of the bailee. (Stewart v. Stone, 127 N. Y. 500; Claflin v. Meyer, 75 id. 260.)
I think the plaintiff established a prima facie case under the pleadings and the proof. It proved a failure to deliver on demand and the proofs are devoid of explanation of the loss. It is true that the complaint alleged as negligence that the defendant placed the car out in a public street but that allegation of the complaint does not show a theft. The loss was quite as likely to have arisen from a subsequent misdelivery by an employee of the defendant as from theft. Placing it in the street does not even show loss of the property. The defendant could as likely have converted the car to its own use. One might infer from the answer that the defendant meant to explain a loss by theft, while the car was standing in *222the street or alleyway “ used for the purpose for a long time preceding.” This cannot, however, be assumed as a fact as a-part of either party’s case unless admitted or proved, and there is no such proof in the case.
While I think that the plaintiff proved a prima facie case of liability, I believe there was error in directing a verdict for the plaintiff after counsel for the defendant specifically asked to go to the jury on the question of damages. This was done before the verdict was directed and the jury was not bound to accept the value placed upon the car by one of plaintiff’s witnesses where the car had been described, and it had been shown to have been used even though a practically new one and that, the owner had assigned its claim for damages to its insurance carrier for less than the value estimated by the.witness.
I favor a reversal of the judgment and order and the granting df a new trial, with costs to the appellant to abide the event.
Hasbrottck, J., concurs.
Judgment and order reversed on the law and facts and new trial granted, with costs to the appellant to abide the event.