THOMAS, J.
(1) The delivery of a horse or vehicle to a livery stable keeper to be kept by him in his stable for hire creates a bailment which, being mutually beneficial to the parties, binds the livery stable keeper or bailee to take ordinary care of the property, which means, as has been often defined, that degree of care that a person of ordinary prudence would take of the property, under the same circumstances, if it were his own. —19 Am. & Eng. Ency. Law (2d Ed.) 432; Swann v. Brown, 51 N. C. 150, 72 Am. Dec. 568; Seals v. Edmondson, 71 Ala. 509; Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33; Southern Ry. Co. v. Shelton, 142 Ala. 371, 38 South. 805; Prince v. Fair Association, 106 Ala. 341, 17 South. 449, 28 L. R. A. 716.
(2-4) Either case or assumpsit will lie in favor of the bailor against the bailee for loss or injury happening to the property as a proximate result of the failure on the part of the bailee to use such care — case for negligence in performing the duty growing out of the contract of bailment, and assumpsit for a breach of the promise or undertaking therein contained (Bank of Mobile v. Huggins, 3 Ala. 206; Hackney v. Perry, 152 Ala. 632, 44 South. 1029; Davis v. Hurt, 114 Ala. 146, 21 South. 468)—and since under the Code of 1907 the two actions, when relating to the same subject-matter or arising out.of the same transaction, may be joined in one complaint. — Code 1907, § 5329. And on the trial of the cause, when the bailor shows a contract of bailment and an injury to or loss of the property while in the care and custody of the bailee, or a failure to redeliver it on demand, or a redelivery of it in a damaged condition, the burden of proof is shifted to the bailee to acquit himself of negligence, which he may do, since he is not an insurer, by showing that the property was destroyed as the result of an accidental fire not attributable to his own fault or negligence. The burden is then shifted to the bailor, or plaintiff, to show that, notwithstanding the accidental fire, the property could and would have probably been saved but for the want of ordinary care and diligence on the part of the bailee in failing to take proper precautionary measures or safeguards for its protection or preservation against loss by fire.—Authorities supra; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Schmidt v. Blood, 24 Am. Dec. 153, notes; and cases cited in note to case of Am. Brew. Ass’n v. Talbot, 64 Am. St. Rep. 538.
[190]*190(5) What constitutes such ordinary care and diligence in a given case is rarely ever a question of law, but is generally a question of fact, to be determined by the jury under all the surrounding facts and circumstances, whenever there is substantial evidence upon which to submit such an issue.—Randle v. Birmingham Ry. Co., 158 Ala. 532, 538, 48 South. 114; 21 Am. & Eng. Ency. Law (2d Ed.) 498 et seq.; East Tenn. Va. Co. v. Bayliss, 74 Ala. 150; Am. Brew. Ass’n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538; Seals v. Edmondson, supra; Southern Ry. Co. v. Shelton, supra.
(6) In the present case, it appeared without dispute that the plaintiff’s horse, which had been intrusted to defendant as a livery stable keeper to keep for hire, was burned, while in the care and custody of defendant, as the result of the livery stable in which the horse was so being kept accidentally and from some unknown cause catching on fire and being consumed thereby during the late hours of the night after the community had retired and while defendant was at his home asleep, a distance of some blocks from the stable, and that it was impossible, after the fire was discovered, to save the horse, the fire having made such headway. The particular want of diligence imputed to the defendant by the plaintiff was the failure of the defendant to leave some person in charge of and to remain at the stable during the night. There is some evidence affording an inference that if the defendant had done this, such person would probably have discovered the fire in time to remove the horse from the burning building with safety.
The plaintiff’s evidence tended to show that others in the community, engaged in the same business as defendant, customarily left persons in charge of their stables at night, and, for the purpose of emphasizing the necessity for defendant to do' so as a general proposition, it was shown that at defendant’s, stable the conditions as to the arrangement and location of the stalls therein were such that it required more time and was more difficult to get a horse out in case of fire than at these other stables. Whether the defendant, in failing to leave a guard or watchman at his stable during the night, was negligent — that is,, guilty of not using that degree of care which an ordinarily prudent man would have used with respect to his own property under the circumstances— was a question for the jury, whose [191]*191peculiar province it was to ascertain and determine, under all the facts and circumstances of the case, what- an ordinarily prudent man would have done under the circumstances, and to judge the defendant and to measure his duties by that standard. It was not here a question of law for the court, and it consequently committed no error in its rulings involving this proposition, which consisted in sustaining defendant’s demurrers to certain counts of the complaint setting out the particular act of alleged negligence mentioned, and in refusing the affirmative charge requested by plaintiff. — Authorities last cited.
(7, 8) In the case of Seals v. Edmondson, cited (an Alabama case), the question passed upon by the jury was very much like that here; that is, as to whether defendant, the bailee warehouseman, was negligent in not keeping a person in charge of the building at night, the accidental burning of which during Christmas, as the result of fireworks exploded in the streets by merrymakers, caused the loss of plaintiff’s cotton stored therein. The court permitted the defendant’s witness Horace Reddock to testify, over plaintiff’s objection, that in his judgment it was not necessary for defendant to keep a person at his stable at night in order to protect the stock therein against fire. If proper objections had been interposed to the questions eliciting these answers, the court would have been reversed for admitting them, as they were the statement of a mere conclusion of the witness to a matter not within the range of admissible expert opinion, even if the witness had been shown to be an expert, though we cannot conceive how he could have been, on the proposition as to when it was and when it was not necessary for a livery stable keeper, in the exercise of the ordinary care and diligence which the law exacts of him, to keep a watchman at .his stable at night. This was the very issue before the jury, involving a mixed question of law and fact, and was entirely foreign, as said, to the field of legitimate expert testimony. If the questions calling. forth these answers had been objected to on the ground that they called for the conclusion of the witness, it would have been reversible error for the court not to sustain them. Here, however, the only objection interposed to the questions was, in substance, that the witness was not shown to have any knowledge of livery stables or of the livery stable business. Such an objection was not tenable, for even the existence of such knowledge on the part
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THOMAS, J.
(1) The delivery of a horse or vehicle to a livery stable keeper to be kept by him in his stable for hire creates a bailment which, being mutually beneficial to the parties, binds the livery stable keeper or bailee to take ordinary care of the property, which means, as has been often defined, that degree of care that a person of ordinary prudence would take of the property, under the same circumstances, if it were his own. —19 Am. & Eng. Ency. Law (2d Ed.) 432; Swann v. Brown, 51 N. C. 150, 72 Am. Dec. 568; Seals v. Edmondson, 71 Ala. 509; Higman v. Camody, 112 Ala. 267, 20 South. 480, 57 Am. St. Rep. 33; Southern Ry. Co. v. Shelton, 142 Ala. 371, 38 South. 805; Prince v. Fair Association, 106 Ala. 341, 17 South. 449, 28 L. R. A. 716.
(2-4) Either case or assumpsit will lie in favor of the bailor against the bailee for loss or injury happening to the property as a proximate result of the failure on the part of the bailee to use such care — case for negligence in performing the duty growing out of the contract of bailment, and assumpsit for a breach of the promise or undertaking therein contained (Bank of Mobile v. Huggins, 3 Ala. 206; Hackney v. Perry, 152 Ala. 632, 44 South. 1029; Davis v. Hurt, 114 Ala. 146, 21 South. 468)—and since under the Code of 1907 the two actions, when relating to the same subject-matter or arising out.of the same transaction, may be joined in one complaint. — Code 1907, § 5329. And on the trial of the cause, when the bailor shows a contract of bailment and an injury to or loss of the property while in the care and custody of the bailee, or a failure to redeliver it on demand, or a redelivery of it in a damaged condition, the burden of proof is shifted to the bailee to acquit himself of negligence, which he may do, since he is not an insurer, by showing that the property was destroyed as the result of an accidental fire not attributable to his own fault or negligence. The burden is then shifted to the bailor, or plaintiff, to show that, notwithstanding the accidental fire, the property could and would have probably been saved but for the want of ordinary care and diligence on the part of the bailee in failing to take proper precautionary measures or safeguards for its protection or preservation against loss by fire.—Authorities supra; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Schmidt v. Blood, 24 Am. Dec. 153, notes; and cases cited in note to case of Am. Brew. Ass’n v. Talbot, 64 Am. St. Rep. 538.
[190]*190(5) What constitutes such ordinary care and diligence in a given case is rarely ever a question of law, but is generally a question of fact, to be determined by the jury under all the surrounding facts and circumstances, whenever there is substantial evidence upon which to submit such an issue.—Randle v. Birmingham Ry. Co., 158 Ala. 532, 538, 48 South. 114; 21 Am. & Eng. Ency. Law (2d Ed.) 498 et seq.; East Tenn. Va. Co. v. Bayliss, 74 Ala. 150; Am. Brew. Ass’n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538; Seals v. Edmondson, supra; Southern Ry. Co. v. Shelton, supra.
(6) In the present case, it appeared without dispute that the plaintiff’s horse, which had been intrusted to defendant as a livery stable keeper to keep for hire, was burned, while in the care and custody of defendant, as the result of the livery stable in which the horse was so being kept accidentally and from some unknown cause catching on fire and being consumed thereby during the late hours of the night after the community had retired and while defendant was at his home asleep, a distance of some blocks from the stable, and that it was impossible, after the fire was discovered, to save the horse, the fire having made such headway. The particular want of diligence imputed to the defendant by the plaintiff was the failure of the defendant to leave some person in charge of and to remain at the stable during the night. There is some evidence affording an inference that if the defendant had done this, such person would probably have discovered the fire in time to remove the horse from the burning building with safety.
The plaintiff’s evidence tended to show that others in the community, engaged in the same business as defendant, customarily left persons in charge of their stables at night, and, for the purpose of emphasizing the necessity for defendant to do' so as a general proposition, it was shown that at defendant’s, stable the conditions as to the arrangement and location of the stalls therein were such that it required more time and was more difficult to get a horse out in case of fire than at these other stables. Whether the defendant, in failing to leave a guard or watchman at his stable during the night, was negligent — that is,, guilty of not using that degree of care which an ordinarily prudent man would have used with respect to his own property under the circumstances— was a question for the jury, whose [191]*191peculiar province it was to ascertain and determine, under all the facts and circumstances of the case, what- an ordinarily prudent man would have done under the circumstances, and to judge the defendant and to measure his duties by that standard. It was not here a question of law for the court, and it consequently committed no error in its rulings involving this proposition, which consisted in sustaining defendant’s demurrers to certain counts of the complaint setting out the particular act of alleged negligence mentioned, and in refusing the affirmative charge requested by plaintiff. — Authorities last cited.
(7, 8) In the case of Seals v. Edmondson, cited (an Alabama case), the question passed upon by the jury was very much like that here; that is, as to whether defendant, the bailee warehouseman, was negligent in not keeping a person in charge of the building at night, the accidental burning of which during Christmas, as the result of fireworks exploded in the streets by merrymakers, caused the loss of plaintiff’s cotton stored therein. The court permitted the defendant’s witness Horace Reddock to testify, over plaintiff’s objection, that in his judgment it was not necessary for defendant to keep a person at his stable at night in order to protect the stock therein against fire. If proper objections had been interposed to the questions eliciting these answers, the court would have been reversed for admitting them, as they were the statement of a mere conclusion of the witness to a matter not within the range of admissible expert opinion, even if the witness had been shown to be an expert, though we cannot conceive how he could have been, on the proposition as to when it was and when it was not necessary for a livery stable keeper, in the exercise of the ordinary care and diligence which the law exacts of him, to keep a watchman at .his stable at night. This was the very issue before the jury, involving a mixed question of law and fact, and was entirely foreign, as said, to the field of legitimate expert testimony. If the questions calling. forth these answers had been objected to on the ground that they called for the conclusion of the witness, it would have been reversible error for the court not to sustain them. Here, however, the only objection interposed to the questions was, in substance, that the witness was not shown to have any knowledge of livery stables or of the livery stable business. Such an objection was not tenable, for even the existence of such knowledge on the part [192]*192of the witness would not, as seen, have made his answer any more competent as evidence.
(9, 10) There was no injury, if error, in the action of the court in sustaining defendant’s objection to plaintiff’s question to the witness Thomas, “Did defendant have a man that stayed at the stable at night?” as it appears that the witness subsequently answered the question, and as it further appears without dispute that defendant did not have a man that stayed at the stable at night.
(11) The questions propounded by plaintiff to the witness Morgan, to wit, “If a fire had broken out at the stable with nobody there, it would have been impossible for these horses to have gotten out, would it not?” and “If defendant had had somebody there when the fire occurred, there would have been some chance to have gotten them out, wouldn’t there?” clearly called for the conclusion of the witness, and the court committed no error in sustaining defendant’s objection to them. Besides, it appears the witness subsequently answered each question.
There was no injury, if error, in sustaining defendant’s objection to plaintiff’s question to the witness Lory, “But he [defendant] put you. in there to take charge of things,” since the witness subsequently answered the question.
We deem it unnecessary to consume further time in reviewing in detail the other assignments of error, since they are equally without merit as those to which we have adverted, and. are not specifically urged in brief.
Affirmed.