1 This subject has recently come under consideration in the Privy Council (Giblin v. McMullen, Law R. 2 P. C. 317); and the language of the court is worthy of special remark. Lord Chelmsford, in delivering judgment, said: "Of course, if intended as a definition, the expression 'gross negligence' wholly fails of its object. But as there is a practical difference between the degrees of negligence for which different classes of bailees are responsible, the term may be usefully retained as descriptive of that difference, more especially as it has been so long in familiar use, and has been sanctioned by such high authority as Lord Holt and Sir William Jones in his essay on the Law of Bailments.
"In the case of Grill v. General Screw Collier Company [Law R. 1 C. P. 612], Mr. Justice Willes, after agreeing with the dictum of Lord Cran-worth [Baron Rolfe, ut supra], and stating that the same view of the term 'gross negligence' was held by the Exchequer Chamber in Beal v. The South Devon Railway Company [3 H. & C. 337], said: 'Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use.' It is hardly correct to say that the Court of Exchequer Chamber, in the case referred to, adopted the view of Lord Cranworth as to the impropriety of the term 'gross negligence.' Mr. Justice Crompton, in delivering the opinion of the court, said: ' It is said that there may be difficulty in defining what gross negligence is; but I agree in the remark of the Lord Chief Baron in the court below, where he says, "There is a certain degree of negligence to which every one attaches great blame. It is a mistake to suppose that things are not different because a strict line of demarcation cannot be drawn between them;"' and he added, 'For all practical purposes the rule may be stated to be, that the failure to exercise reasonable care, skill, and diligence, is gross negligence.' Mr. Justice Montague Smith, in the case in which the above-mentioned observations of Mr. Justice Willes were made, said: 'The use of the term "gross negligence" is only one way of stating that less care is required in some cases than in others, as in the case of gratuitous bailees; and it is more correct and scientific to define the degrees of care than the degrees of negligence.' The epithet 'gross' is certainly not without its significance. The negligence for which, according to Lord Holt, a gratuitous bailee incurs liability is such as to involve a breach of confidence or trust, not arising merely from some want of fore-eight or mistake of judgment, but from some culpable default. No advantage would be gained by substituting a positive for a negative phrase, because the degree of care and diligence which a bailee must exercise corresponds with the degree of negligence for which he is responsible, and there would be the same difficulty in defining the extent of the positive duty in each case as the degree of neglect of it which incurs responsibility.
§ 834. Bailments are divided into five different classes, namely: 1. Deposits; 2. Mandate; 3. Loan for Use; 4. Pledge or Pawn; 5. Hiring. We shall, therefore, consider these different bailments in order.
"In truth, this difficulty is inherent in the nature of the subject; and though degrees of care are not definable, they are with some approach to certainty distinguishable; and in every case of this description in which the evidence is left to the jury, they must be led by a cautious and discriminating direction of the judge to distinguish, as well as they can, degrees of things which run more or less into each other."