688; S. C., 2 Eng. L. and Eq., 337; Pope v. Nickerson, 3 Story, 475; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 32. But different employments may and do have different usages, and consequently confer on the master different powers. And when, as in this case, a usage appears to be general, not unreasonable in itself, and indirectly beneficial to the owner, we are of opinion the master has power to act under it and bind the owner. The appellee must be deemed to have been lawfully on board under this general custom.

§ 15. Any negligence by which a boiler explosion on a steamboat is caused is gross.

Whether precisely the same obligations, in all respects, on the part of the master and owners and their boat existed in his case as in that of an ordinary passenger paying fare, we do not find it necessary to determine. In the Philadelphia & Reading Railroad Company v. Derby, 14 How., 486, which was a case of gratuitous carriage of a passenger on a railroad, this court said: "When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of gross.' We desire to be understood to re-affirm that doctrine as resting, not only on public policy, but on sound principles of law.

§ 16. The theory as to three degrees of negligence, slight, ordinary and gross, cannot be usefully applied in practice.

The theory that there are three degrees of negligence described by the terms slight, ordinary and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Me., 177, the supreme court of Maine say: "How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define." Mr. Justice Story (Bailment § 11) says: "Indeed, what is common or ordinary diligence is more a matter of fact than of law." If the law furnishes no definition of the terms gross negligence, cr ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.

Recently the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions and have complained of the impracticability of applying them. Wilson v. Brett, 11 Mees. & W., 113; Wyld v. Pickford, 8 id., 443, 461, 462; Hinton v. Dibbin, 2 Q. B., 646, 651. It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such cases as Tracy v. Wood, 3 Mason, 132, and Foster v. The Essex Bank, 17 Mass., 479, would alone be sufficient to

justify these complaints. It may be added that some of the ablest commentators on the Roman law and on the civil code of France have wholly repudiated this theory of three degrees of diligence as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See Toullier's Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203, etc.; Makeldey, Man. Du Droit Romain, 191, etc.

But whether this term gross negligence be used or not, this particular case is one of gross negligence according to the tests which have been applied to such a case. In the first place, it is settled that "the bailee must proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part." Story on Bailments, § 15.

It is also settled that, if the occupation or employment be one requiring skill, the failure to exert that needful skill, either because it is not possessed or from inattention, is gross negligence. Thus Heath, J., in Shields v. Blackburne, 1 H. Bl., 161, says: "If a man applies to a surgeon to attend him in a disorder, for a reward, and the surgeon treats him improperly, there is gross negligence, and the surgeon is liable to an action. The surgeon would also be liable for such negligence if he undertook, gratis, to attend a sick person, because his situation implies skill in surgery." And Lord Loughborough declares that an omission to use skill is gross negligence. Mr. Justice Story, although he controverts the doctrine of Pothier that any negligence renders a gratuitous bailee responsible for the loss occasioned by his fault, and also the distinction made by Sir William Jones between an undertaking to carry and an undertaking to do work, yet admits that the responsibility exists where there is a want of due skill or an omission to exercise it. And the same may be said of Mr. Justice Porter, in Percy v. Millaudon, 20 Mart., 75. This qualification of the rule is also recognized in Stanton v. Bell, 2 Hawks, 145. § 17. Negligence in the care of boilers on steamboats is culpable. Acts of congress considered.

That the proper management of the boilers and machinery of a steamboat requires skill must be admitted. Indeed, by the act of congress of August 30, 1852 (10 Stat. at Large, 61), great and unusual precautions are taken to exclude from this employment all persons who do not possess it. That an omission to exercise this skill vigilantly and faithfully endangers, to a frightful extent, the lives and limbs of great numbers of human beings, the awful destruction of life in our country by explosions of steam boilers but too painfully proves. We do not hesitate, therefore, to declare that negligence in the care or management of such boilers, for which skill is necessary, the probable consequence of which negligence is injury and loss of the most disastrous kind, is to be deemed culpable negligence, rendering the owners and boat liable for damages, even in case of the gratuitous carriage of a passenger. Indeed, as to explosion of boilers and flues, or other dangerous escape of steam on board steamboats, congress has, in clear terms, excluded all such cases from the operation of a rule requiring gross negligence to be proved to lay the foundation of an action for damages to person or property.

The thirteenth section of the act of July 7, 1838 (5 Stats. at Large, 306), provides: "That in all suits and actions against proprietors of steamboats for injury arising to persons or property from the bursting of the boiler of any steamboat, or the collapse of any flue, or other dangerous escape of steam, the fact of such bursting, collapse or injurious escape of steam shall be taken as full prima facie evidence, sufficient to charge the defendant or those in his

employment with negligence, until he shall show that no negligence has been committed by him or those in his employment."

This case falls within this section, and it is therefore incumbent on the claimants to prove that no negligence has been committed by those in their employment.

Have they proved this? It appears that the disaster happened a short distance above Benicia; that another steamer, called the Wilson G. Hunt, was then about a quarter of a mile astern of the New World, and that the boat first arriving at Benicia got from twenty-five to fifty passengers. The pilot of the Hunt says he hardly knows whether the boats were racing, but both were doing their best; and this is confirmed by the assistant pilot, who says the boats were always supposed to come down as fast as possible; the first boat at Benicia gets from twenty-five to fifty passengers. And he adds that at a particular place called "the slough" the Hunt attempted to pass the New World. Fay, a passenger on board the New World, swears that, on two occasions before reaching "the slough," the Hunt attempted to pass the New World, and failed; that, to his knowledge, these boats had been in the habit of contending for the mastery, and on this occasion both were doing their best. The fact that the Hunt attempted to pass the New World in "the slough" is denied by two of the respondents' witnesses, but they do not meet the testimony of Fay as to the two previous attempts. Haskel, another passenger, says: "About ten minutes before the explosion I was standing looking at the engine. We saw the engineer was evidently excited, by his running to a little window to look out at the boat behind. He repeated this ten or fifteen times in a very short time." The master, clerk, engineer, assistant engineer, pilot, one fireman and the steward of the New World were examined on behalf of the claimants. No one of them, save the pilot, denies the fact that the boats were racing. With the exception of the pilot and the engineer they are wholly silent on this subject. The pilot says they were not racing. The engineer says: "We have had some little strife between us and the Hunt as to who should get to Benicia first. There was an agreement made that we should go first. I think it was a trip or two before." Considering that the master says nothing of such an agreement; that it does not appear to have been known to any other person on board either boat; that this witness and the pilot were both directly connected with, and responsible for, the negligence charged, and that the fact of racing is substantially sworn to by two passengers on board the New World and by the pilot and assistant pilot of the Hunt, and is not denied by the master of the New World, we cannot avoid the conclusion that the fact is proved. And certainly it greatly increases the burden which the act of congress has thrown on the claimants. It is possible that those managing a steamboat engaged in a race may use all that care and adopt all those precautions which the dangerous power they employ renders necessary to safety. But it is highly improbable. The excitement engendered by strife for victory is not a fit temper of mind for men on whose judgment, vigilance, coolness and skill the lives of passengers depend. And when a disastrous explosion has occurred in such a strife, this court cannot treat the evidence of those engaged in it, and prima facie responsible for its consequences, as sufficient to disprove their own negligence, which the law presumes.

We consider the testimony of the assistant engineer and fireman, who are the only witnesses who speak to the quantity of steam carried, as wholly un

satisfactory. They say the boiler was allowed by the inspector to carry forty pounds to the inch, and that when the explosion occurred they were carrying but twenty-three pounds. The principal engineer says he does not remember how much steam they had on. The master is silent on the subject and says nothing as to the speed of the boat. The clear weight of the evidence is that the boat was, to use the language of some of the witnesses, doing its best. We are not convinced that she was carrying only twenty-three pounds, little more than half her allowance.

This is the only evidence by which the claimants have endeavored to encounter the presumption of negligence. In our opinion it does not disprove it; and consequently the claimants are liable to damages, and the decree of the district court must be affirmed.

MR. JUSTICE DANIEL dissented, on the ground that the libel did not bring the case within the jurisdiction of the federal courts.

MILES v. THE RECEIVERS.

(Circuit Court for Virginia: 4 Hughes, 172-180. 1882.)

STATEMENT OF FACTS.-A little boy climbed up on a locomotive engine, and on being discovered the engine was stopped, but before it could be brought to an absolute rest the boy jumped or fell, was caught by the machinery and fatally injured. The boy's mother petitioned the court for damages, the road being operated by receivers appointed by the court.

Opinion by HUGHES, J.

If, on a review of the evidence, and on the law arising upon it, it shall appear to the court that this is a case for damages, then it must be sent to a jury for an assessment of the amount to be accorded to the petitioner. It has been argued and submitted on the question whether or not it is a case for damages and for a jury, and this is the first question upon which I am to pass.

It is not pretended that any evidence in addition to that now before the court can be had in the case. Indeed the case has been closed as to the taking of evidence. So that, all the evidence being in, and the case submitted upon the question whether or not it is a case for an inquiry as to the amount of damages, it is not only competent for the court to determine whether or not it is a case for damages, but also, if concluding that it is not, to dismiss the petition finally.

§ 18. Negligence and contributory negligence.

The law of negligence applicable to such a case as that at bar may be stated as follows: The plaintiff, in an action for negligence, cannot succeed if it is found that he has himself been guilty of any negligence or act which caused the accident, unless the defendant could, by the exercise of ordinary care and diligence, have avoided the mischief which happened. Radley v. London & N. W. R. Co., L. R., 9 Exch., 71.

The present case turns upon the latter inquiry; for whether it be a grown person or a child who wantonly gets upon a running engine, the managers of the engine and train are bound to use ordinary care and diligence to avoid accident to him. And, if that ordinary care and diligence appears, there can be no recovery, whether the sufferer by the accident be a grown person, or a youth capable of knowing whether or not his act was wrongful or dangerous, or a child too young to conceive the nature of his act.

The testimony shows that the engineer acted upon the rule which the experience of railroad men has taught to be the wisest, safest and best one; namely, when danger threatens, to stop the engine and reverse it.. The testimony shows that the fireman acted on the belief (evidently proper) that it was best for that boy to hold on, and for himself to go to his rescue and to lift him clear of entanglement with the machinery. The testimony thus proves that these men used more than ordinary care and diligence in these respects, and brings the case within the rule which exonerates defendants from liability to damages.

The testimony indicates that the boy was killed, not from want of ordinary care and diligence in the engineer and fireman, but from a jarring of the engine necessarily incident to the position in which he had placed himself, and from a lameness which disabled him from keeping clear of the machinery when he dropped from the engine.

$19. Negligence cannot be imputed to a bona fide effort to save human life, though by mistake the result may be disastrous.

Even if it were true, which I by no means concede, that the engineer committed a mistake in stopping and reversing the engine, yet this would not subject the defendants to liability. He was bound only to use "ordinary care and diligence;" he was not bound to avoid mistakes, committed with bona fide intention to carry out reasonable rules and orders prescribed for such emergencies. If he innocently committed such a mistake, then the case falls within that most excellent rule of law laid down by Dr. Wharton (Negligence, sec. 314), "The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons."

And another writer says (Bigelow on Torts, p. 312): "The defendant can never be liable when anything out of the natural and usual course of events transpires in such a way as to make the defendant's negligence, otherwise harmless, productive of injury."

§ 20. General principles controlling the subject of negligence.

Some of the more general principles of law governing a case like that at bar are the following: "When a man does everything in his power to avoid doing the mischief, then the liability ceases, and the event is to be regarded as a casualty." Wharton, sec. 781. "A person is expected to anticipate and guard against all reasonable consequences of his act, but not to anticipate and guard against that which no reasonable man would expect to occur. Greenland v. Chaplin, 5 Exch., 248." Addison on Torts, 29. "The standard by which to determine whether a person has been guilty of negligence is the conduct of the prudent, or careful, or diligent man.' "The mere fact of an injury having been suffered is not enough to establish a charge of negligence. No one is responsible for an injury caused purely by inevitable accident while he is engaged in a lawful business, even though the injury was the direct consequence of his own act, and the injured party was, at the time, lawfully employed, and in all respects free from fault." Shearman & Redfield on Negligence, sec. 5. "There are many cases in which it might be desirable that a greater degree of care should be used than the law requires; but it is only the lack of such care or diligence as the law demands which constitutes culpable negligence. And the law makes no unreasonable demands. . . . If one uses all the skill and diligence which can be attained by reasonable means, he is not responsible for failure." Id., sec. 6.