Boyce, J.,
charging the jury:—This is an action brought by the plaintiff company against the defendant company to recover damages for injuries to an automobile of the plaintiff company, alleged to have resulted from the negligence of the defendant company with which the automobile in question had been left in its garage for safe-keeping.
[1] This action is based upon an alleged contract of bailment, such as arises where one delivers property to another to keep safely for hire, either express or implied. When such a contract is created, and the property is delivered to the bailee, the latter is liable for the safe-keeping of the property.
[2-6] Negligence is the failure to use such care as a reasonably prudent and careful person would exercise under similar circumstances. Negligence is never to be presumed. It must be proved, like any other substantive fact. Ordinarily the burden of proof is upon him who alleges the negligence relied upon for a recovery. When, however, property is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by the negligence of himself, his servant or agent. The negligence, if any there was, of the servant or agent of the bailee is imputed to the bailee.
[7, 8] A garage keeper is bound to exercise reasonable care to preserve from injury automobiles left by their owners at his garage for hire, such care as a reasonable person would exercise in respect to his own property, and he is also bound to see that the person to whom he delivers an automobile left with him for safe-keeping is the proper person to receive it. The only surrender that a garage, keeper can rightfully make of an automobile left with him for safe-keeping is on the order of the owner, express or reasonably implied.
[388]*388[9] If, under the evidence in this case, you find for the plaintiff, your verdict should be for such a sum as would reasonably compensate it for the damages sustained, the measure of which is the difference between the value of the automobile immediately before, and its value immediately after it was damaged, with interest from the date of the damage. If, on the other hand, you find that the defendant exercised due and reasonable care in keeping the automobile, your verdict should be for the defendant.
Verdict for plaintiff.
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