tion be answered in the affirmative, the bailee is not responsible for any loss or injury that occurs to the bailed goods, and such loss must fall on the bailor. If, however, the question be answered in the negative, the bailee is then guilty of a breach of a legal duty, and is therefore responsible to the bailor for all damages directly and proximately flowing from the breach.

As we have just seen, by classifying the bailment on the score of benefit, a certain degree of care is arrived at as the measure of the bailee's duty, and the bailee is liable only for a breach of his duty as so measured. This breach of a legal duty is called negligence, and the ordinary bailee is therefore said to be liable only for his negligence." Or it is said that his liability is reckoned in terms of negligence. This is to distinguish the liability of the ordinary bailee from that of certain of the extraordinary bailees who are liable (with specific exceptions) for any loss or injury to the goods regardless of how the loss or injury occurred, and regardless of any fault or dereliction of duty on their part. These extraordinary bailees are said to be liable as insurers; or it is said that their liability is reckoned in terms of insurance.

In fixing the degrees of care, thus establishing standards of duty, any breach of which is negligence, the controlling factor is the

Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. 675; Smith v. New York Cent. R. Co., 24 N. Y. 222; Perkins v. New York Cent. R. Co., 24 N. Y. 196, 82 Am. Dec. 281; McAdoo v. Richmond & D. R. Co., 105 N. C. 140, 11 S. E. 316; Storer v. Gowen, 18 Me. 174; Lane v. Boston & A. R. Co., 112 Mass. 455; Hinton v. Dibbin, 2 Q. B. 646; Wyld v. Pickford, 8 Mees. & W. 442; Preston v. Prather, 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788; GRAY v. MERRIAM, 148 Ill. 179, 35 N. E. 810, 32 L. R. A. 769, 39 Am. St. Rep. 172, Dobie Cas. Bailments and Carriers, 43. On negligence as a breach of duty to use commensurate care, see 2 Jagg. Torts, 810; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686; Brown v. Congress & B. St. Ry. Co., 49 Mich. 153, 13 N. W. 494; Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784; Cooley on Torts (Student's Edition) § 338; Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261.

66 Wood v. McClure, 7 Ind. 155; Watkins v. Roberts, 28 Ind. 167; Carpenter v. Branch, 13 Vt. 161, 164, 37 Am. Dec. 587; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Cass v. Boston & L. R. Co., 14 Allen (Mass.) 448; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156, 158; Abraham v. Nunn, 42 Ala. 51; Yale v. Oliver, 21 La. Ann. 454; Levy v. Bergeron, 20 La. Ann. 290; Waller v. Parker, 5 Cold. (Tenn.) 476; James v. Greenwood, 20 La. Ann. 297; Britton v. Aymar, 23 La. Ann. 63; McGinn v. Butler, 31 Iowa, 160; Watkins v. Roberts, 28 Ind. 167; Shiells v. Blackburne, 1 H. Bl. (Eng.) 158; Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 34, 63 Am. St. Rep. 359. A bailee who receives plumes to be dyed is not an insurer thereof. Johnson v. Chicago Feather Co., 172 Ill. App. 81. See, also, Whitlock v. Auburn Lumber Co., 145 N. C. 120, 58 S. E. 909, 12 L. R. A. (N. S.) 1214; O'ROURKE v. BATES, 73 Misc. Rep. 414, 133 N. Y. Supp. 392, Dobie Cas. Bailments and Carriers, 172.

DOB.BAILM.-3

intended benefit to be derived from the bailment. The degree of care exacted of the bailee varies directly with the benefit accruing to the bailee from the bailment. When the bailor receives all the benefit from the bailment, and the bailee none, this standard of care is the lowest. When the bailor receives none of the benefit and the bailee all, the highest standard of care is exacted. When the benefit is mutual, accruing to both bailor and bailee, the standard is naturally higher than in the first case mentioned and lower than in the second case. Accordingly we say that in bailments for the bailor's sole benefit the bailee must exercise only slight care;67 in bailments for the bailee's sole benefit, great care; and in bailments for the mutual benefit of both the bailor and bailee, ordinary care."

69

It is thus clear that the bailee is always liable for his negligence, which is a breach of legal duty. But it is impossible to determine the presence or absence of negligence without first outlining the duty, which is here done by classifying the bailment, thus arriving at the degree or standard of care which it is the bailee's duty to exercise. By comparison with this standard the conduct of the bailee is then to be judged. It therefore follows that the same acts of the bailee might be negligence when judged by the standard of duty prescribed in one class of bailments and might not be negligence judged by the standard of another class. Thus, let us suppose that the conduct of the bailee is equivalent, under the circumstances, to ordinary care. Now, in a bailment for the bailor's sole benefit, the bailee's duty is only slight care, and therefore in exercising ordinary care (a higher degree than slight care) the bailee has more than fulfilled the duty imposed on him, and he is therefore not guilty of negligence, and hence not liable. But, in a bailment for the bailee's sole benefit, the bailee's duty is great care (a higher degree than ordinary care) and in exercising only ordinary care the bailee has committed a breach of his duty, and he is therefore guilty of negligence in the premises and hence liable. Measured, then, by his duty to exercise a certain degree of care, any failure by the bailee, however slight, to live up to that standard, is negligence, rendering him liable for direct and proximate damages flowing therefrom.

67 CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54; Belmont Coal Co. v. Richter, 31 W. Va. 858, 8 S. E. 609. See post, § 29.

68 Wilcox v. Hogan, 5 Ind. 546; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61. See post, § 40.

69 Wood v. Remick, 143 Mass. 453, 9 N. E. 831; Standard Brewery v. Bemis & Curtis Malting Co., 171 Ill. 602, 49 N. E. 507. See post, §§ 53, 65.

70

Ever since Lord Holt's decision in COGGS v. BERNARD, however, writers and judges have fallen into the use of the extremely unfortunate terminology known as "grades or degrees of negligence." Thus it is said that, in bailments for the bailor's sole benefit the bailee is responsible only for great or gross negligence, by which is meant failure to exercise even slight care; in bailments for the bailee's sole benefit, it is said that the bailee is responsible even for slight negligence, by which is meant failure to exercise great care; and in bailments for the mutual benefit of both bailor and bailee, it is said the bailee is liable for ordinary negligence, by which is meant the failure to exercise ordinary care. This distinction of three grades or degrees of negligence, in order to determine the liability of the bailee, has become so interwoven with the law of bailments that it is impossible to disregard it. It has been, however, severely and justly criticised as unscientific, inaccurate, and misleading. Negligence, as we have already seen, is the breach of a legal duty. For any negligence, or breach of such duty, resulting in damage, the bailee is liable, regardless of the fact whether the negligence be slight, ordinary, or great. Therefore, when negligence is given its real meaning as a juristic concept, a statement that the bailee is not liable for slight negligence or ordinary negligence is a misnomer, a contradiction in terms, a legal absurdity. It is therefore logical to apply the adjectives of comparison ("slight," "ordinary," and "great") to the term "diligence" or "care," and not to the correlative term "negligence." If the degrees were applied to the terms "neglect," "fault," or "carelessness," there would be much less objection, but even this terminology is not to be commended. It remains, in this connection, only to explain briefly what is meant by the acceptable terms "slight care," "ordinary care," and "great care." To judge ordinary care, a theoretical man is set up, the man of ordinary prudence, and ordinary care is that degree of care which this man of ordinary prudence is accustomed to exercise in his own affairs under similar circumstances; to

70 Degrees of negligence are not recognized in some cases. Bigelow, Torts, § 265; First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181; Hall v. Chicago, B. & N. R. Co., 46 Minn. 439, 49 N. W. 239; Gill v. Middleton, 105 Mass. 479, 7 Am. Rep. 548. See, also, as to degrees of negligence, The New World v. King, 16 How. (U. S.) 474, 14 L..Ed. 1019; New York Cent. R. Co. v. Lockwood, 17 Wall. (U. S.) 382, 21 L. Ed. 627; Wilson v. Brett, 11 Mees. & W. 113; Grill v. Iron Screw Collier Co., L. R. 1 C. P. 612. 71 The Farmer v. McCraw, 26 Ala. 189, 72 Am. Dec. 718; United States v. Yukers, 60 Fed. 641, 9 C. C. A. 171; Hoffman v. Tuolumne County Water Co., 10 Cal. 413; Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 Pac. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842; Austin & N. W. Ry. Co. v. Beatty,

judge slight care is set up the man of less than ordinary prudence; 72 while great care is judged by the man of more than ordinary prudence. By just how much the man of less than ordinary prudence falls below the man of ordinary prudence, as well as how far above this same ordinary prudent man is the man of great prudence cannot be stated with any accuracy or definiteness. The force and application of these comparative standards will appear in the treatment of the several classes of bail

ments.

Finally, it might be remarked that the whole scheme of degrees of diligence, as well as the methods of judging them, has been criticised as being neither accurate nor philosophical. But by the overwhelming weight of authority the scheme, though admittedly far from perfect, still obtains, and continual resort is had to it as the best method yet suggested in order to arrive at a practical solution of the question of the liability of the bailee for loss of, or injury to, the goods constituting the subject-matter of the bailment."

PRESUMPTION OF NEGLIGENCE FROM LOSS OR

INJURY

17. The burden of proof as to negligence rests primarily upon the bailor, but he makes out a prima facie against the bailee by showing the loss of, or injury to, the goods.

There is no little confusion among the decisions in regard to the burden of proof in cases where the bailee is sued by the bailor for loss of, or injury to, the bailed goods. It seems accurate, according to the weight of authority, and also on principle, to say that, since the negligence of the bailee is a fact upon which the bailor's right to recover is based, the burden of proof as to such negligence

73 Tex. 592, 11 S. W. 858; Marsh v. Benton County, 75 Iowa, 469, 471, 39 N. W. 713. See Story, Bailm. § 11; Jones, Bailm. § 6.

72 According to Judge Story, "slight diligence is that which persons of less than common prudence, or, indeed, of any prudence at all, take of their own concerns." Story, Bailm. § 16. And see Vaughan v. Menlove, 3 Bing. N. C. 468, 475.

73 Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Wood v. McClure, 7 Ind. 155; BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56; Hagebush v. Ragland, 78 Ill. 40; Kennedy v. Ashcraft, 4 Bush (Ky.) 530; Lane v. Cameron, 38 Wis. 603; Cullen v. Lord, 39 Iowa, 302; Stewart v. Davis, 31 Ark. 518, 25 Am. Rep. 576.

74 See Van Zile, Bailm. & Carr. § 94.

rests at the outset on the plaintiff bailor, and remains on him all during the trial. But by proving that the goods were delivered to the bailee in good condition and that they were returned in a damaged condition or not returned at all, the plaintiff thereby makes out a prima facie case of negligence, and thus imposes upon the defendant bailee the duty of going forward with the evidence under penalty of losing the suit." Hence a mere showing of loss or injury will entitle the plaintiff bailor to recover, unless this is offset by evidence adduced by the defendant bailee. The bailee, though, may overcome the prima facie case, thus made out on the part of the bailor, by proving affirmatively that he exercised that degree of care which the bailment in question called for, or that the loss or injury was due to causes in no way connected with the lack of proper care on his part.7 Such a showing

75 Boies v. Hartford & N. H. R. Co., 37 Conn. 272, 9 Am. Rep. 347; Funkhouser v. Wagner, 62 Ill. 59; Goodfellow's Ex'rs v. Meegan, 32 Mo. 280, 284; BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56; Vaughan v. Webster, 5 Har. (Del.) 256; Safe Deposit Co. of Pittsburgh v. Pollock, 85 Pa. 391, 27 Am. Rep. 660; Wintringham v. Hayes, 144 N. Y. 1, 38 N. E. 999, 43 Am. St. Rep. 725; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Coleman v. Livingston, 36 N. Y. Super. Ct. 32; Golden v. Romer, 20 Hun (N. Y.) 438; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Wilson v. Southern Pac. R. Co., 62 Cal. 164; Thompson v. St. Louis & S. F. Ry. Co., 59 Mo. App. 37; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596; McCarthy v. Wolfe, 40 Mo. 520; Cross v. Brown, 41 N. H. 283; Collins v. Bennett, 46 N. Y. 490; Lamb v. Western R. Corp., 7 Allen (Mass.) 98; Massillon Engine & Thresher Co. v. Akerman, 110 Ga. 570, 35 S. E. 635; HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W. 826, Dobie Cas. Bailments and Carriers, 27; Jackson v. McDonald, 70 N. J. Law, 594, 57 Atl. 126; Shropshire v. Sidebottom, 30 Mont. 406, 76 Pac. 941; Davis v. A. O. Taylor & Son, 92 Neb. 769, 139 N. W. 687; Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 562, 568, 47 Am. Rep. 75. See Alden v. Pearson, 3 Gray (Mass.) 342; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Burnell v. New York Cent. R. Co., 45 N. Y. 184, 6 Am. Rep. 61; Schwerin v. McKie, 51 N. Y. 180, 10 Am. Rep. 581; Fairfax v. New York Cent. & H. R. R. Co., 67 N. Y. 11; Travelers' Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703, 45 L. R. A. (N. S.) 331; Nutt v. Davison, 54 Colo. 586, 131 Pac. 390, 44 L. R. A. (N. S.) 1170. The rule that, where property bailed is not returned, the law presumes negligence in the bailee, and the burden is on him of showing that the loss is not due to his negligence, is the same whether the bailment is gratuitous or not. Pregent v. Mills, 51 Wash. 187, 98 Pac. 328. Where a horse in the hands of a blacksmith to be shod is returned to the owner with his foot injured, and the blacksmith makes no explanation other than that he dropped the horse's foot on a drawing knife, such evidence will support a finding of negligence. Powell v. Hill (Tex. Civ. App.) 152 S. W. 1125. See, also, Johnson v. Perkins, Ga. App. 633, 62 S. E. 152.

76 McLoughlin v. New York Lighterage & Transp. Co., 7 Misc. Rep. 119, 27 N. Y. Supp. 248; HUNTER v. RICKE BROS., 127 Iowa, 108, 102 N. W.