Duffy's Garage v. Sweeley , 1917 Pa. Super. LEXIS 321 ( 1917 )

Opinion by

Trexler, J.,

The defendant delivered to the plaintiffs, partners trading as “Duffy’s Garage,” his automobile for a general overhauling. All the new parts required were furnished by the defendant. After the job was completed the car was taken out for a trial run and found to work all right, but as it was about to be returned to the garage, the casing broke and the gears were injured. The car was again taken apart and the owner of the car was sent for. The defendant was informed that the mechanic who had fixed the car had left the employ of the plaintiffs and there would be a delay of a day or two but that they would fix-the car and make no extra charge. Defendant stated that he had to have the car and that if plaintiffs would not charge any storage, he would get a mechanic and fix the car, and so he did. He terminated the bailment and took back his property. The court gave binding instructions for the plaintiffs.

The principal question is, “Where property is damaged in the possession of the bailee upon whom rests the burden of proof?” Ordinarily he who alleges negligence must prove it. This is so when the subject of the injury is a bailment. Thus in Leidy v. Quaker City Cold Storage Co., 180 Pa. 323, we find that goods stored, being damaged, negligence of, the cold storage warehouse man could not be assumed from the mere fact of the goods being injured, but had to be affirmatively proved.

In Logan v. Mathews, 6 Pa. 417, it is held that where property is returned by the bailee in a damaged condition, it is incumbent upon the bailee to give some account as to how the injury occurred so that the bailor may be .enabled to test the accuracy of the bailee’s report. When the bailée refuses or omits to give' any account of the injury, the burden shifts. In the case before us we think the plaintiffs as bailee of the automobile have performed the duty imposed by the rule laid down in the above cited decision and have relieved themselves of any presumption of negligence. As we stated above, they sent for the defendant, showed him the broken parts, apparently gave him every opportunity of inquiry and inspection, and in addition thereto offered to do the work necessary to repair the damage. This was going farther than they were required to go.

The defendant attempted to show that taking plaintiffs’ account' of the accident that the gears were injured through their carelessness, but the proof failed entirely. There were a number of offers made by the defendant to prove the amount of his damages but as they did not include an offer to prove plaintiffs’ negligence, they were properly excluded.

All the assignments are overruled and the judgment is affirmed.