(after stating the facts as above). We are satisfied that if the defendant occupied the position of a gratuitous bailee merely, it was in no way liable in this case. If it was such a bailee, it could only have been held liable upon proof of gross negligence, and no such proof is to be found in the record. Gross negligence is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature. It is an omission of duty which is akin to fraud. It is the absence of even slight care. We find no proof of any such gross negligence in the case at bar.
The defendant, however, was not, as we view the evidence, a gratuitous bailee. It was a warehouseman; that is to say, a bailee for hire. As such it owed a duty of the exercise of reasonable or ordinary care. It is true that the journey was over, the freight paid, and that a part of the goods were delivered. The defendant, however, still retained the remainder, and had the right to charge storage therefor, both under the terms of the bill of lading, the statute, and the common law. This really is the test of the relationship; for it would never do to allow a bailee to act under a one-sided option, and to claim and to insist upon the relationship of a gratuitous bailee if the goods were lost or destroyed while in his custody, but to claim that of a bailee for hire if, when a delivery was demanded, he was able to produce the goods. Gray v. Missouri River Packet Co.
Again in the case of Tarbell v. Royal Exch. Shipping Co. 110 N.
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Y.
182,
In this case 63 slabs of tin were received at the port of New York. Notice was given to the consignees, who obtained a permit at the custom house for its discharge. Two days later they paid the freight, and obtained an order for the delivery of the tin, addressed to the clerk of the steamer on which it had been shipped. They left the order on the same day with the clerk, indorsed, “Deliver to our order only.” On the same day the tin was discharged from the vessel. On the next day a weigher, sent by the assignees to defendant’s wharf, Aveighed the tin and divided it into 5-ton lots. Three days later it Avas found that sixty-three, slabs were missing; but there was nothing to show Avhen or by whom they had been taken. The court found that the part .of the Avharf where the tin lay was the private wharf of the defendant. It was covered with a substantial building the doors of which. Avere locked at night. Two watchmen were employed by the defendant to watch the wharf by day and four by night, and due care had been .taken in their selection. There was also a competent person in. the employ of the defendant to keep tally of the cargo taken aAvay by merchants, and to take receipts for it. The trial court found for the plaintiff, and upon appeal the judgment was affirmed. The court, in passing upon the question, held that “under the circumstances, the defendant, under the authorities, must be held to have made delivery of the tin under its contract as carrier, and to have discharged itself from its custody as such.” It, however, proceeded as follows: “There can *313 be no doubt, we suppose, that in many cases a carrier’s whole duty in respect to goods carried by him is not discharged by a constructive delivery terminating his strict responsibility as carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. The law enables him to wholly exempt himself from responsibility in such a contingency by giving him the right to warehouse his goods. When this is done, he is no longer liable in any respect, and if they are subsequently lost by the negligence of the warehouseman, the carrier is not liable. Redmond v. Liverpool, N. Y. & P. S. B. Co. supra, and cases cited. But so long as he has the custody of the goods, although there has been a constructive delivery which exempts him from liability as carrier, there supervenes upon the original contract of 'carriage by implication of law a duty as bailee or warehouseman to take ordinary care of the property. This duty of ordinary care rested upon the defendant in this case. The tin, it is true, was placed by the act of the defendant under the dominion of the consignee for the purposes of weighing and removal; but nevertheless, as between the defendant and their assignees, the actual custody of the part not removed by the consignees or their assignees remained at all times in the defendant. It was deposited on its private wharf, to which alone it, its servants, and those permitted by it, had access. The tin could not have been removed against their consent. It was, in fact, removed by someone unknown, by their tacit acquiescence, doubtless without any fraud on their part, but nevertheless its removal by a stranger was made possible by reason of an omission on the part of the defendant’s servants to take the precautions against misdelivery which the defendant had deemed it proper to prescribe to prevent such an occurrence. The trial court found that the omission to take these precautions was negligence. We do not perceive why this finding is not supported by evidence. If there was negligence on the part of the servants of the defendants which occasioned or contributed to the loss, the doctrine of respondeat superior applies, and makes it in law the negligence of the defendant. The delay of the consignees in removing the tin had no legal connection with this breach of duty by the defendant, and cannot justly be considered as a concurring cause of the loss.”
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We find no cases which hold to a contrary doctrine, with, perhaps the exception of Brown v. Grand Trunk R. Co. 54 N. H. 535. We have carefully examined the authorities presented by counsel for respondent, but find that although in them the carrier was exempted from liability, the evidence disclosed that a delivery had in fact been made, and that the carrier had no longer any custody or control over the goods or any duty to perforin. Most of them are what might be called carload cases in which the freight had been paid, the goods or cars receipted for, and the cars switched upon side tracks or spurs of the consignees. Delivery in fact had been made, though the goods remained in the cars of the railroad company, the custody was in the consignees ; the cars, as it were, being bailed to the consignees, rather than the wheat or cotton contained therein being bailed to the carrier. Such cases are: Vaughn v. New York, N. H. & H. R. R. Co. 27 R. I. 235,
The cases of Neal v. Wilmington & W. R. Co. 53 N. C. (8 Jones, L.) 482, is a case in which the liability of a warehouseman or bailee for hire is alone fixed or considered, and in which the point under consideration in the case at bar is not mentioned. The same is true of the case of Gregg v. Illinois C. R. Co.
In the case of New Albany & S. R. Co. v. Campbell,
In the case of Chalk v. Charlotte, C. & A. R. Co.
*315 In the case at bar there is no proof of any delivery to the consignees of the articles which were destroyed. The testimony is, in fact, that when the plaintiff’s secretary and treasurer “paid the freight, he took a receipt for it. Where there was only one package and it was delivered, there was a ring placed around the figure in the column marked ‘Number of Packages,’ indicating that the package was delivered. Where there was no ring around it, it was not delivered. The barrel of linseed oil not checked off is the only item on that bill not received. The dray-man put on his wagon all the other items, and undoubtedly did not have room to take it. He came up and got other goods right along, but ■did not get around to take this barrel. There might have been other goods that we needed more. Occasionally we specified what he was to bring, but he usually had his own way. In general he had orders to take what came first.” To hold, indeed, in this case that the defendant was a gratuitous bailee merely, would be to hold that in all such cases no storage can be charged, and that consignees can impose upon the accommodations and good nature of the carrier indefinitely. Such a holding might be advantageous to the defendant in this particular lawsuit. We hardly believe, however, that it would advantage it permanently and as a general rule of business, or that the real interests of either carriers or shippers would be subserved thereby.
In the case at bar, also, there is no proof of any notice being given that no charges would he insisted upon. There is, on the other hand, proof that storage charges had occasionally been demanded in the past under similar circumstances. It certainly would have been within the power and the right of the defendant company to have demanded them if the goods had not been destroyed and had been called for some days later. The law will not allow a bailee or warehouseman in such a case to keep his intentions locked in his own breast. It is true that the evidence shows that no charges were demanded, hut all we can infer from this is that no storage fees were demanded up to the time ■of the partial delivery, and none after the fire. There is no evidence of anything being said as to the charges on the goods retained, when they were retained, or any waiver of the right to charge therefor. Hnder the authorities the defendant was a bailee for hire.
We, too, concede that a bailor “seeking to recover from a warehouseman for the nondelivery of goods or an injury thereto must prove
*316
negligence. When he shows that the goods were not delivered on demand or were delivered in damaged condition, he has made a prima facie case. If the defendant accounts for the nondelivery or injury by showing that the goods were stolen or were lost or damaged by fire, or in any other manner not inconsistent with the exercise of ordinary care on his part, the plaintiff’s prima facie case is overcome, and he must prove positive negligence occasioning the loss.” See Schmidt v. Blood, Wend. 268,
The case of Bennitt v. The Guiding Star,
The defendant then was a bailee for hire, and owed the duty of ordinary care. Whether this was exercised or not was, under the evidence, a question for the jury, and not for the court, to decide. The leaving of the door of the stove open, and its proximity to inflammable matter, were not merely possible, but highly probable, causes of the accident. Whether they were the causes or not was for a jury to decide. A plaintiff “is not bound to exclude the possibility that the accident might have happened in some other way, for that would be to require him to make his case beyond a reasonable doubt. He is only required to satisfy the jury by a fair preponderance of the evidence that the injury occurred in the manner he contends it did.” Lunde v. Cudahy Packing Co.
The rule of probabilities has, perhaps, been as clearly stated by the supreme court of Idaho in the case of Adams v. Bunker Hill & S. Min. Co.
The same considerations apply to the question whether the leaving; of the stove door open and in the proximity of the more or less inflammable freight constituted a lack of ordinary care. Questions of negligence are primarily for the jury. The general rule is that H there is evidence tending fairly to show actual negligence on the pafl
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of the defendant or even scant or slight evidence, if it is admitted without objection, the case should be submitted to the jury if it might be reasonably and properly concluded that there was negligence. A case should not be withdrawn from the jury when a recovery can be had on a view that can reasonably be taken of the facts which the evidence tends to show, and the fact that the defendant offers strong evidence showing that the plaintiff must be mistaken in his version of the accident will not justify the court in taking the case from the jury. The question of negligence, indeed, whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury. It becomes one of law, and is with-drawable from the jury only when but one conclusion can be drawn from the undisputed facts. If the undisputed facts are of such a nature that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury. Pyke v. Jamestown,
We are satisfied that there is no proof of gross negligence in this case. Whether or not there was'a lack of ordinary care, however, and whether that lack was the proximate cause of the conflagration, are, we believe, matters upon which reasonable men might differ. Such being the fact, the case should have been submitted to the jury.
The judgment of the District Court is reversed and the cause remanded for further proceedings according to law.