This was an action of claim and delivery for a horse, instituted by the plaintiff against the defendant, brought by appeal from the June term, 1878, of superior court of-Wake county. Both parties waived a jury trial and referred all the issues of law and fact, for decision, to the court. The defendant insisted on the trial and we must consider it as a special instruction prayed for, “ that plaintiff would not be entitled to recover in this action, unless the death of the horse was caused by the defendant, Wynne, and in that event, of which there was no evidence, only for the hire of the horse during the two weeks he -lived after the sale to Wynne.”
In answer to this instruction the court held that there was sufficient evidence from which the court might find as a fact that the death of the horse was occasioned by the acts or negligence of the .defendant, Wynne, in taking and detaining it or while he was detaining it; and referred as to *312'his finding, upon these points to the 6th and 7th sections of •his findings of fact set out in the record. The sections referred to are as follows:
6. “ The horse having died while so detained as aforesaid ■and the defendants being wrong-doers, they ar e prima facie -liable to the plaintiff for its value as a loss occasioned by the taking and detention, and the burden is on them to •prove the cause of the death and to show that it was in no 'degree attributable to their negligence, nor to the fact that they had'taken and were detaining it.”
7. “ That the defendants have not shown this, on the contrary, the court finds as a fact that the death of the horse was occasioned by its removal out of the possession of the plaintiff in the country, into the possession of the defendants in town, and being kept in tpwn and by the uses to which it was put and the manner in which it was tended and managed while it was so detained by the defendant, Wynne.” In the 8th and 9th sections, His Honor found as facts, that the horse was worth'when taken $125, but being 'dead was worth nothing at the time of the trial. ' And he assessed the damages at $125 with interest, for the detention of the horse for two weeks, a finding that can only be warranted upon the ground that the horse came to his death by the ill treatment or negligence of the defendants.
There is no fact of ill treatment or abuse found. But the fact is found by His Honor that the death of the horse was occasioned by its removal from the possession of the plaintiff in the country, into the possession of the defendant in town, and by the uses to which it was put, and the manner in which it was treated and managed while detained by the defendant.
We cannot see from the finding how the health of the horse was affected by Ins removal to the town, nor- how the use to which he was put operated to his injury,, nor in what manner he was improperly “ tended and managed.” The *313findings are too general and indefinite to warrant the conclusion His Honor has drawn from them. They are not sufficient to raise the legal inference of negligence.
Negligence is a mixed question of law and fact. The finding of the facts is a question for the jury, or the court in a case like this, and is conclusive. But whether when found they constitute a case of negligence is a question of law for the court, which is reviewable upon error assigned'.'
There was error in the instruction which His Honor gave to himself as the trier of the facts as to the measure of damages. Let this be certified to the superior court of Wake county, that a venire de novo may be awarded to the defendants.
Error. Venire de novo.