comes necessary to decide whether the carrier has made himself liable for their loss by that degree of negligence which the law characterizes as gross, which is of course a question to be decided by no legal rule, but by the exercise of common reason and by comparison with that conduct which, under the same circumstances, experience and common knowledge would lead us to expect of men of ordinary sense and prudence. Analogous cases can afford but little guidance in forming our conclusions in any particular case, because there are always points of difference in the circumstances, which, however much the cases may resemble each other superficially, would make it unsafe to make the one a test of the other. The question in every case is almost exclusively one of fact, and its determination belongs therefore to the jury and not to the law. Still it may not be inappropriate to refer to some few of those which have been determined in reference to the question of negligence in carriers as mandataries.

Sec. 23. (§ 23.) Not liable for loss by robbery unless negligent. The carrier without hire will not be held liable for the loss of the property by theft or robbery, provided he has used ordinary prudence. Where a box, belonging to one who intended going upon the vessel but was casually left behind, was broken open by the captain after the vessel had got to sea, upon the suggestion that it might contain contraband goods, and its contents, which were valuable, exposed to the view of the passengers, and instead of being nailed up in the box as before were put into the captain's chest in the cabin and were stolen, Lord Ellenborough instructed the jury that where a person does not carry for hire, he is bound to take proper and prudent care of that which is committed to him, and that when the captain opened the box and intermeddled with its contents, he was bound at least to replace it in its former state of security and to restore all the guards with which it had been before protected, and that having learned the value of the property and exposed it to view, the duty of vigilance was enhanced. He therefore left it to the jury whether the de

fendant had been guilty of negligence, and they found a verdict for the plaintiff.13

Sec. 24. (§ 24.) Degree of negligence which creates liability -Instances-In one case14 gold dust was sent from Sacramento to San Francisco by a steamer, notwithstanding notice that it would not charge or become responsible for such merchandise. It was, however, accepted and carried on these terms, and when the boat reached its destination late at night, the clerk went up into the city leaving the gold dust in his office, no otherwise secured than by the locking of the door of the office, and in his absence the door was opened and the dust stolen. An action was brought to recover its value from the owners of the steamer as common carriers, but the court thought that there had been no such negligence as to charge them as gratuitous carriers, and that no recovery could be had against them as common carriers, as they had received no compensation for the service.

Sec. 25. (§ 25.) Same subject-Further illustrations.-But in another case the passenger on a steamboat was urged by the clerk to deposit his money in the iron safe of the boat, as there were thieves on board, and the passenger thereupon did give it to him, and it was locked up in the safe with the understanding that no charge would be made for keeping it. When the boat arrived in port an extra guard was put over the office while the clerk went ashore to attend to the business of the boat, after having locked up the safe and office, taking the keys with him. Notwithstanding these precautions, however, the office and safe were both opened and the money of the passenger stolen. In the action for its recovery against the owner of the boat, it seems to have been thought by the court that, though a mandatary, the carrier had not "used a degree of diligence and attention adequate to the performance of the

13. Nelson

v. Mackintosh,

1

14. Fay v. Steamer New World, Starkie, 237. See, also, Ouder- 1 Cal. 348. kirk v. Bank, 119 N. Y. 263.

trust," and was therefore liable; and a judgment upon a verdict in favor of the plaintiff was affirmed.15

Sec. 26. (§ 26.) Same subject-Further illustrations.-A sum of money was intrusted by one acquaintance to another with the request that upon his return to his home he would deliver it as directed, with which request he promised to comply. Finding afterwards that he would not be able to return as soon as he expected, he turned over the money to a neighbor who was on the eve of starting for the place to which it was to be carried, with the same directions as to its delivery. This was, however, done at a conspicuous place upon a racetrack, and was witnessed by a number of persons. In return ing to his home the friend to whom the money had been thus turned over had his pocket picked upon the cars, and the money was lost. In an action against the party to whom the money was first delivered by the bailor, it was held that he was liable upon two grounds. In the first place it was said. that the unauthorized delivery of the money by the mandatary to another was a conversion which would make him responsible for the loss; and in the second, he was liable on the ground of gross negligence. His conduct, it was said, evinced such a degree of heedless incaution and disregard of common prudence as might justly be considered as amounting to the grossest negligence.16

Sec. 27. (§ 27.) Same subject-Other illustrations.-An express company received a package containing a watch which it

15. Jenkins v. Motlow, 1 Sneed, robbery or for any other purpose, 248. The learned judges who de- it would seem unquestionable that cided these cases certainly dif- the carrier at once becomes a comfered widely in their views as to mon carrier as to the money as he the character and extent of the is of the passenger's baggage, the negligence necessary to impose a price paid for the passage being liability upon a gratuitous bailee. also the hire for the carriage of The last case seems to be cor- whatever the passenger commits rectly decided, but upon the wrong to the custody of the carrier. ground. When the passenger puts his money in the safe of the carrier at his request, to prevent a

16. Colyar v. Taylor, 1 Cold. 372.

promised to carry gratuitously, and upon its arrival at destination, there being rumors of an expected raid upon the town. by Confederate troops, sent it promptly by one of its messengers to the house of the consignee; but he, finding upon inquiry that the consignee was absent from home, without leaving any notice at the house of the arrival of the package, returned it to the company's office, where it was locked up in its safe. The expected raid was made the next day, after a similar attempt, however, to make the delivery, with the same result, the safe broken open, and the watch taken and lost to the consignee. She sued the company and recovered the value of the watch, the court being of opinion that the defendant had made itself liable by its gross negligence in not leaving notice at the consignee's residence, so that the package could have been sent for by her on the same evening (which would probably have been done by her), and in putting it in the safe, which the company must have known would be the first object of attack in case of a raid such as was expected. "In this perplexing state of facts," said Robertson, C. J., "hard as it may be to impute to the agent culpable or gross negligence, we are so far inclined to that conclusion as to feel at least such an equipoise as not to be able to reverse the judgment of the circuit court on any solid or satisfactory grounds."17 But where the captain of a ship received a number of watches, for which it was not shown that he was to receive any recompense, and put them into his own chest and in his own cabin upon the ship, and while the ship was anchored in the river she was boarded by robbers, the chest violently taken out of the cabin, where he was sleeping, and broken open and plundered of its contents, it was held that he had taken ordinary care of them, and that, being a carrier without hire, he was not liable for the loss.18

17. Adams Ex. Co. v. Cressap, 6 Bush. 572. But see Adams Ex. Co. v. Darnell, 31 Ind. 20; Howard Ex. Co. v. Wile, 64 Penn. St. 201,

in which the paid bailee was ex

cnerated upon facts somewhat similar.

18. Pender v. Robbins, 6 Jones (Law), 207.

Sec. 28. (§ 28.) Loss of own goods at same time presumptive but not conclusive evidence of diligence. The fact that the gratuitous bailee has lost his own property together with that of the bailor with which he was intrusted, at the same time and by the same means, will of course be strong presumptive evidence in his favor; but it will not be, by any means, conclusive of the question of honesty or diligence, although the opinion of Lord Holt in Coggs v. Bernard seems to have been different. "For if," says he, "the bailee keeps the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them; for the keeping them as he keeps his own is an argument of his honesty. As suppose the bailee is an idle, drunken, careless fellow, and comes home drunk and leaves all his doors open, and by reason thereof the goods happen to be stolen, and his own, yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for neglects and under the least obligation of any one, being bound to no other care of the bailed goods than he takes of his own.'

Sec. 29. (§ 29.) Same subject-Reckless exposure of own goods. But it has been said that a man might, in respect to his own property, be willing to encounter extraordinary risks or adventures upon mere gambling speculations, with a view to a particular advantage or from a natural disposition to rashness, which would be wholly unjustifiable in respect to the goods of another placed in his custody. And it has accordingly been held in a number of cases that the mandatary, whether for carriage or for some other purpose, may become liable by reason of his gross negligence in the care of the property bailed to him, although he may have taken the same care of it as of his own.19

Sec. 30. (§ 30.) Same subject-Loss of bailor's goods only. --Still, there are authorities of the highest respectability which 19. Doorman v. Jenkins, 2 A. & Mo. 109; Story on Bail. § 64; E. 256; Booth v. Wilson, 1 B. & Tracy v. Wood, 3 Mason, 132. Ald. 59; McLean v. Rutherford, 8