260 



LIVERY-STABLE KEEPERS, AGISTERS, ETC. 



A gratuitous 

 Bailee. 



Negligence of 

 a Bailee. 



Rule as to 

 negligence of 

 gratuitous 

 Bailee. 



Use strictly 

 personal. 



and all it amounts to is, that the defendant was bound 

 to use such skill and management as he really possessed. 

 Whether he did so or not, was, as it appears to me, the 

 proper question for the Jury." 



And Mr. Baron Parke said, " The defendant was shown 

 to be a person conversant with Horses, and was therefore 

 bound to use such care and skill as a person conversant 

 with Horses might reasonably be expected to use ; if he 

 did not, he was guilty of negligence." 



And Mr. Baron Rolfe said, " The distinction I intended 

 to make between this case and that of a borrower is, that a 

 Gratuitous J)ailee is onh/ hound to exercise such skill as he 

 possesses, whereas a Hirer or Borrower may reasonably be 

 taken to represent to the party who lets or from whom he 

 borrows, that he is a person of competent skill. If a 

 person more skilled knows that to be dangerous which 

 another, not so skilled as he does not, surely that makes a 

 diif erence in the liability. I said I could see no cliiference 

 between negligence and gross negligence — that it was the same 

 thing with the addition of a vituperative epithet" (e). 



Whether there is a distinction, and what that distinction 

 is, if there be one, between negligence and gross negligence, 

 is a matter of little importance ; but one thing is settled, 

 that the negligence of a gratuitous bailee, to be actionable, 

 differs from the negligence which would be actionable in a 

 bailee, who is not gratuitous, and the distinction appears to be 

 that a gratuitous bailee is not liable for simple negligence, 

 for which a borrower would be liable, but only for such 

 negligence as he is guilty of in spite of the better sliill or 

 knowledqe, n-liich he either actually had, or undertook to 

 have (/). 



And the principle upon which he is liable is thus well 

 laid down in Coggs v. Bernard (g) : " If a man will enter 

 upon a thing, and take the trust upon himself, and mis- 

 carries in the performance of the trust, an action will lie 

 against him for that ; though no one could have compelled 

 him to do the thing." 



In cases of mere gratuitous loan, the use is to be deemed 

 strictly a personal favour and confined to the Borrower, 



{e) Wilson v. Brett, II M. & W. 

 113. See also per Willes, J., in 

 Grill V. General Iron Screw Colliery 

 Co., L. R., I C. P. 612. 



(/) 1 Smith's L.-C. Sth ed. 221, 

 222; per Pollock, C. B., Bml v. 

 South Bcvou liailicaij Co., 5 H. & N. 



881 ; Austin v. Manchester Rail- 

 tcay Co., 10 C. B. 454; Gihlin v. 

 McMullen, L. R., 2 P. C. 317. 



{g) Coqgs v. Bernard, I Smith's 

 L. C. Stii ed. 199 et seq. ; Glblin v. 

 McMullen, L. R., 2 P. C. 317. 



