23S ACCIDENT TimOUGII GROSS NEGLIGEKCE. 



ages were assessed contingently ; and a rule ;;/.s/ was obtained to enter 

 a verdict for the plaintifls on the issue on the sixth pica, and for judg- 

 ment non obstante veredicto, which was not confined to any particular 

 plea. The Court of Queen's Bench held that the traverse taken by the 

 pleii was material, and that the verdict should stand. Erie J. said : 

 " It will be seen that the charge of negligence arises from the defend- 

 ants standing in a certain situation, that of bailees. The foundation of 

 the declaration is the bailment. Now negligence is a matter of degree ; 

 what is negligence under one baihnent is not negligence under another. 

 The bailment, therefore, should be carefully stated. It may be on the 

 terms that the bailee shall carry safely ; he is then a sort of insLU'er, It 

 may be on the terms that he shall take such care as the owner would 

 reasonably take; he is then bound to take reasonable care. It may be 

 on the terms that he shall be discharged from all responsibility as to the 

 sufficiency of the means of conveyance ; and that is clearly the present 

 case. An ordinary ticket would be simply an engagement for the 

 carriage of the animals ; here the ticket contains a contract for the 

 carriage on the terms of conveying for a lower remuneration, but with- 

 out any liability for accidents arising in the course of the conveyance. 

 The plaintiffs knew the terms. On the face of this record the breach is 

 of a duty, founded on a contract which is traversed, and not proved. 

 Had it been alleged that the damage accrued from the wheel taking fire, 

 and that the defendants undertook that the means of conveyance should 

 hold good, that allegation of responsibility would have been traversed." 

 A case was re-tried between the same parties, to recover damages for 

 the loss of one horse, which was killed in the manner described in the 

 first action ; and the declaration alleged that i/ie accident was entirely 

 occasioned l)ij the cjross negligence and gross misconduct of the plain tijfs, 

 and also contained a count in trover. To this the defendants pleaded, 

 first, Not guilty, to the whole declaration ; secondly, to the first count, 

 that the injury was occasioned by conveyance and other contingencies 

 within the true meaning of (he ticket; and thirdly, to the firsc count, 

 that the defects existed in the truck when the horse was placed in it. 

 It was argued for the defendants that the ticket being the contract on 

 which they received the horses, they were by its express terms exempted 

 from all responsibility for damage of whatever kind, and however 

 arising, which horses, &c., might encounter during the journey ; 

 while the plaintiffs submitted that the facts })rovcd exhibited such 

 a degree of gross negligence on the part of the Company's servants 

 as to remove from them the protection of the notice. Jcrvis C.J. 

 strongly inclined to the latter opinion, and so told the jury, intimating 

 at the same time that the question whether sucli negligence entitled 



