directions, or to conform to the object or purpose of the trust, whatever it may be.1 Sec. 2. (§2.) Classification of bailments.-According to the compensation to be received, the degree of responsibility to be assumed, or the character of the duty to be performed by the person to whom the bailment is made, who is called the bailee, bailments have been divided into number of classes, and some of these classes again into subdivisions. This classification was first brought into the common law by Lord Holt in his celebrated judgment in the case of Coggs v. Bernard,2 and is said to have been adopted by him from the civil law." The most general division of them according to this classification is into, first, such as are for the exclusive benefit of the bailor or of some person other than the bailee; secondly, such as are for the exclusive benefit of the bailee; and thirdly, such as are for the benefit of both parties. The first of these divisions includes what are known as deposits (depositum), which are naked bailments of goods to be kept for the bailor without recompense and to be returned when the bailor shall require it, and mandates (mandatum), which are defined to be bailments of goods to be carried from place to place or to have some act performed about them without reward or recompense; the second embraces only gratuitous loans to the bailee (commodatum); and the third pledges to secure a debt or the fulfillment of some engagement, and a hiring for reward or compensation (pignus); and this last subdivision is again divided into the hiring a thing for use (locatio rei); the hiring of work and labor (locatio operis faciendi); the hiring of care and services to be performed on the thing delivered (locatio 1. Various definitions of bailment are given in Schouler on Bailments and Carriers, § 2, note. Mr. Schouler himself defines bailment as "A delivery of some chattel by one party to another, to be held according to the special purpose of the delivery, and to be returned or delivered over when that special purpose is accomplished." Id. § 2. See, also, Mr Schouler's note to Coggs v. Bernard, 1 Smith's Leading Cases, 9th Am. Ed., 400. 2. Lord Raym. 909; 1 Smith's Ld. Cases 283. 3. Story on Bail., § 8. custodiae); and the hiring of the carriage of goods from one place to another (locatio operis mercium vehendarum).4 Sec. 3. (§3.) Application of rules to carriers.—According to these divisions and definitions, the carriage of goods is always either a mandate, when it is gratuitous or without compensation to the carrier, or a hiring, when he is paid for the service; and under these heads, the duties and obligations of carriers of goods were formerly treated in connection with the general subject of bailments and as a part of it. But it must be evident from this statement that, while this classification of the different kinds of bailments according to their various purposes may be extremely convenient for the treatment of the general subject in all its different branches, it is almost wholly unimportant in connection with the subject of the duties and liabilities of the carriers of goods, except to show in what particular character of bailment the carrier holds the goods intrusted to him, and that, which is equally apparent, most of the general principles of the bailments of goods have little or no application to questions in which he may be concerned. Besides, the extraordinary responsibilities which are imposed by the law upon common or public carriers of goods for hire,5 who are by far the most important agents of commerce in modern times, are founded upon reasons which have no application to ordinary bailments, and in fact make such carriers exceptions from the general rules and principles by which the liability of other bailees is to be tested. Sec. 4. ($4.) Liability of common carrier distinguished from that of other bailees.-It will therefore be found that while private carriers, whether with or without reward, are strictly bailees and nothing more, and that questions as to their liability are to be determined by the ordinary rules which govern the responsibility of bailees, the common carrier of goods stands upon an entirely different footing, and when 4. Lord Holt's classification was, in terms, into "six sorts of bailments," but the six sorts naturally reduce themselves to the three greater classifications given in the text. See Schouler, Bailments, § 14. 5. See post, § 4. questions as to his liability for the loss of the goods or their injury whilst in his custody for the purpose of carriage arise, they must be decided upon principles peculiarly applicable to them, and which have no application to any other kind of bailment except that to the innkeeper by his guest. In all other cases of bailment, for instance, the very foundation of the bailee's liability is negligence in some degree, either greater or less, according to the particular nature of the bailment, and before he can be made liable the requisite negligence must be shown. But the question of negligence, when the purely common-law relation of common carrier to the goods exists, is ordinarily wholly foreign to the inquiry whether such a carrier is to be held liable for their loss or injury, and, as will hereafter be seen, evidence on his part of the most exact diligence will be wholly irrelevant and inadmissible. If, for example, the private carrier or any other ordinary bailee be robbed of the goods, or if they should be accidentally destroyed by fire or any other calamity, without negligence on his part, the law will excuse him; but if they be taken froru a common carrier by a force ever so irresistible less than the public enemy," or if they should be destroyed by fire ever so unavoidable,10 he will nevertheless be liable for them. He is an insurer of the goods against all losses except those caused by the act of God, the public enemy, the law, the owner, or the inherent nature of the goods.11 Ilis extraordinary liability rests upon a rule of law, applicable to but two classes, which had its rise in reasons of public policy,12 and not upon the contract of bailment, although without the bailment the liability cannot exist. Sec. 5. (5.) Questions of negligence in law of carriers.--Still, questions of negligence are of constant occurrence in dealing with the subject of the liability of carriers. The private carrier cannot be held liable unless it be shown that he 6. See post, §§ 266-319. 7. See post, § 39. 8. See post, § 40. 9. See post, § 315. 10. See post, § 279. has been guilty of either negligence or misfeasance which has occasioned the loss.13 The liability of the passenger carrier for an injury to his passenger generally depends exclusively upon the question of negligence.14 And, although the commou carrier of goods, when he is not protected by contract, is liable for the consequences of every casualty resulting in the loss of the goods, except such as are excepted by the law as above stated, yet when he attempts to exonerate himself from liability by showing that the cause of the loss comes within one or the other of these exceptions, he may be met by proof that, but for his negligence, the occasion of the loss would have been avoided.15 So, if the goods be of a perishable nature, and he attempt to defend himself against liability for their loss by showing that it was attributable to the principle of inherent infirmity and decay, as he may do, it may be shown that he failed to bestow upon them the necessary care to arrest or prevent such decay, and was therein guilty of negligence but for which the loss would not have occurred.16 And when he has made exceptions to his liability by his contract in addition to those allowed him by the law, and undertakes to screen himself from liability for a loss by showing that it was produced by one of the excepted causes, it will be a complete avoidance of his defense to show that he did not use the proper Idiligence to prevent or to escape from the danger.17 Sec. 6. (6.) Degree of diligence required depends on circumstances. The liability of all carriers of goods may therefore turn upon the question of negligence; and hence the law as to the liability of bailees in general for negligence, of which the law of bailments is in a large part made up, becomes frequently of the greatest importance in furnishing the rule as to the degree or character of the negligence for which the carrier as well as other bailees will be held responsible. It is evident, however, that the same degree of care and diligence 13. See post, § 37 et seq. 14. See post, § 892 et seq. 15. See post, § 319. 16. See post, §§ 337, 338. 17. See post, § 477. in the custody of the goods should not be required of the bailee under all circumstances; and it follows as a consequence that there cannot be a more inflexible rule as to the degree of negligence which will put him so much in fault as to make him responsible for the loss or injury which may ensue; "for negligence in a legal sense," says a distinguished writer and judge, "is no more nor less than this: the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."18 "A man would not be expected to take the same care of a bag of oats as of a bag of gold; of a bale of cotton, as a box of diamonds or other jewelry; of a load of common wood, as of a box of rare paintings; of a rude block of marble, as of an exquisitely sculptured statue. The value, especially, is an important ingredient to be taken into consideration upon every question of negligence; for that may be gross negligence in the case of a parcel of extraordinary value, which in the case of a common parcel would not be so."19 So the customs of trade or of particular places are to be taken into consideration; for that care and attention which are bestowed upon their goods by those engaged in a particular trade, or generally or universally by those who inhabit a particular place or locality, may be very fairly taken as evidence that that degree of care and attention was all that was needed for their protection or preservation. So too it cannot be doubted but that the bailee's duty would require him to be more vigilant at some times and at some places than at others, and the same conduct which might be considered prudent at one time or at one place would perhaps be deemed negligent at another. A man, for instance, intrusted with a large sum of money, might prudently venture to travel alone with it in the day-time, when it would be imprudent to do so at night, or by one route when it would be rashness to undertake the same journey by another. And goods entrusted to a bailee might require very 18. Cooley on Torts, 630. 19. Story on Bail., § 15. |