Thе defendants bought by sample seven pieces of silk of the plaintiff. Certain silk from- the plaintiff' was' delivered to the defendants by express, which on examination was found not to correspond to .the sample. The defendants immediately reshipped the silk to the plaintiff. It was lost by the express company and never was delivered to the plaintiff. There was evidence that the defendants or onе of their employees stated to the express company at the time of the return shipment that the value of the goods was under $50. In truth their value was much greater. This action in tort is brought to recovеr the value of the silk (less $50 collected of the express company), on the ground of negligence.
■ There is no controversy that the defendants in reshipping the silk were gratuitous bailees. The point to be dedided is the measure of their liability as such.
It was said by Chief Justice Parker in the leading case of Foster v. Essex Bank,
The distinction between gross negligence and ordinary negligence. also from that early date has been recognized and established. All the pertinent decisions are reviewed at length in Massaletti v. Fitzroy,
Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by оmission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exеrcise -under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.
Gross negligence is substantially and appreciably highеr in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty 'of an aggravated character аs distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to рresent legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The ele
This definition does not possess the exactness of a mathematical demonstration. But it is what the law now affords. It is the result of our own decisions. Massaletti v. Fitzroy, 228 Mass. 487, and cases cited at 500, 501. Devine v. New York, New Haven, & Hartford Railroad,
But the definition here formulated is fundamentally at variance with that given in some other jurisdictions, which hold that gross negligence implies wilful conduct, either actual or constructive, intended to cаuse injury, a variance recognized in some of those decisions. Jorgenson v. Chicago & Northwestern Railway,
Since the distinction between negligenсe and gross negligence is imbedded in our law and its principles for the discernment of that distinction are established, a party, whenever the evidence makes them applicable, has a right to insist that the jury be instructed in conformity to them.
In the case at bar the judge instructed the jury respecting the liability of the defendants as gratuitous bailees by saying at first: “‘The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith.’ That is, shall use the degree of care in the performance of the undertaking which is
It would have been correct to state the law as laid down in Foster v. Essex Bank, ubi supra, or in Rubin v. Huhn, ubi supra, and instruct the jury that bad faith or gross negligence in dealing with the goods held by them was the standard of the defendants’ liability, and that failure to use with respect to the plaintiff’s goods the sаme care which they exercised toward their own was sufficient to establish bad faith and hence liability. But the only evidence as to the way in which the defendants dealt with their own goods of similar charaсter under like circumstances came from an employee; of the defendants. The jury might not believe his testimony. If they reached that conclusion, then they would have no standard of bad faith as. established by the conduct of the defendants with respect to their own goods under like circumstances, and would need some guide as to the law which they ought to follow. The judge gave them the rule of ordinary nеgligence. He ought to have stated to
The judge rightly refused to direct a verdict in favor of the defendants. The facts were sufficient to support a finding for the plaintiff. It was for the jury to sаy whether it was not gross negligence or want of good faith on the part of the defendants to fail to observe the quantity of silk and to reship it to the plaintiff with an excessive undervaluation given to the сarrier, a statement as to value by which the parties became bound by contract. Aradalou v. New York, New Haven, & Hartford Railroad,
The jury may have discredited the evidence tending to show that they exercised the same care with respect to the goods of the plaintiff as they did with respect to their own. If they did so discredit it, then they might find gross negligence on the other evidence.
Exceptions sustained.
Notes
Weld v. Postal-Telegraph Cable Co.