Plaintiff kept his automobile in defendant’s garage under a contract providing that defendant should wash and care for the car, for which plaintiff paid twenty-seven dollars and fifty cents a month. Said garage was a steam-heated garage. Plaintiff had kept his automobile there for about ten years. On December 30, 1917, plaintiff used- his car and returned' it to the garage in" good condition. On January first plaintiff tried to use his car, and found that the water in the cooling system was frozen and that'the'water jacket had burst. To recover the damages' sustained by reason thereof this action is brought.
"The facts .are practically' not-in disputé.'4-Although it" was' •unusually cold weather the defendant ran- the motors of some cars' and emptied the water from the cooling systems of others to avoid freezing but took no measures whatsoever with respect to plaintiff’s car. Defendant apparently seeks to excuse this by *432claiming that it might rely upon the presumption that the plaintiff had some- anti-freeze solution in his radiator, that defendant had no authority to empty the contents of plaintiff’s cooling system and that plaintiff took with him the key to the ignition system when plaintiff left the car in the garage. It also appears that plaintiff lived only about 700 feet from the garage and his residence was well known to the defendant.
Plaintiff as bailor made' out a prima facie case against defendant as bailee when plaintiff’s proof showed that he delivered the car in good condition to defendant to care for and that when plaintiff called for it within a day or two the car was damaged. Neustadt v. Lehigh, etc., 159 App. Div. 667. It then became the duty of the defendant to rebut this prima, facie case by showing that it used due care as bailee. Wintringham v. Hayes, 144 N. Y. 1. This the defendant, failed to do. When the plaintiff stored his car in a steam-heated garage he had a right at least to expect that the temperature would be above the freezing point. If owing to the severity of the weather the defendant could not keep the temperature above the freezing point although it had done everything that an ordinarily prudent man could do to keep up the temperature, still the defendant would not be relieved from the obvious precaution of either drawing off the water from the cooling system by simply turning the pet cock provided.for this purpose, or taking other obvious precautions to prevent the water from freezing and bursting the pipes. The fact that-the plaintiff had taken with him the key to the ignition system might have some bearing on whether the defendant should have sought to have prevented the freezing by the expedient of running the motor, but would not have excused its neglecting the other obvious pre*433cautions that any ordinarily prudent person would have exercised in the care of like property of his own.
The exception of the defendant to the charge of the learned court below wherein the court charged that ‘ ‘ the degree of care that a person has to use is such care as is commensurate with the circumstances of each case,” was well taken and the court should have charged the defendant’s request that the measure of defendant’s liability upon this branch of the case was that degree of care that an ordinarily prudent person would exercise concerning his own property. In a bailment such as is the case at bar that is the proper measure of the care required of the bailee. In Israel v. Uhr, 164 N. Y. Supp. 50, this court said, page 51: “ The duty resting on a bailee in such a case is to exercise a like degree of care in respect of the subject of the bailment as a prudent man in similar circumstances commonly takes of his own goods, and the burden is upon the bailee of showing his compliance with, that duty. Ouderkirk v. Central Nat. Bank, 119 N. Y. 263.”
To the same effect Wilson v. Wyckoff, Church & Partridge, 133 App. Div. 92; affd., 200 N. Y. 561. The duty in the case at bar did not arise out of the obligation resting upon every person not to commit a tort upon his neighbor but upon the obligation arising out of the bailee’s contract and the jury should- have had clearly before them the measure of the defendant’s duty of care. ' ’
It follows that the judgment should be reversed and a new trial-ordered, with thirty dollars costs to the •appellant- tó. abide the event.