The knowledge which the witness Hallenbeck had, fully authorized him to express an opinion as to the condition of the fastenings of the vessel as to safety. (Price v. Powell, 3 Comst., 322; Bearss v. Copley, 6 Seld., 93; Pullman v.Corning, 5 Seld., 93.) In Bearss v. Copley, a witness had testified that a certain injury to hides could not have been caused by the plaintiff's negligence, but that it was an injury in the hides before they came to the tannery. It appeared that the witness had been engaged in the tanning business a little over four years, and had done all kinds of work in the process of tanning, but that he had abandoned the business and was then a student-at-law. GARDINER, Ch. J., said, in the absence of all proof to the contrary, experience for this length of time wasprima facie evidence of the competency of the witness to speak upon the subject. There was nothing in the change of the employment, from tanning hides to the study of the law, which would necessarily deprive him of the skill acquired in his original trade. The evidence was, therefore, properly admitted.
The exceptions to the charge made, and to the refusals to charge, present, in fact, but one question, that is, the extent or degree of care which the sheriff was called upon to exercise for the safety of the coal, while in his custody, under the process mentioned. The court holding that he was bound only to exercise such care as a careful, prudent man, of good sense and judgment, would take of his own property; while the plaintiff insisted that the sheriff was bound to do more than this; in his language, "to take more than ordinary care." On the trial of this case, which was reviewed by this court (21 N.Y., 103), the rule laid down by Judge STORY, in his work on bailments (§ 130), in respect to the liability of an officer, circumstanced like the defendant, was questioned. That rule was: "He would doubtless be responsible for gross negligence and fraud; but whether he would be responsible *Page 242 for ordinary negligence does not appear to have been decided by any adjudged case, although, as he is a bailee for compensation, it may be thought that he ought to be bound by the common rule in such cases to ordinary diligence." Judge SELDEN thought this was stating the rule too faintly, when the sheriff removes the property from the possession of the defendant and takes it entirely under his own charge. But this court thought the sheriff was excusable, under the circumstances, in not removing the coal, and expressed the opinion, that in this case the sheriff was responsible for any negligence or want of ordinary skill on the part of either the man employed to watch, or of the master of the schooner; for, by leaving the coal in charge of the latter, without other control than that of a man to watch and see that the vessel was not removed, he necessarily made the master his agent to see to the security of the coal, and became, therefore, responsible for any negligence or want of skill of the latter in taking care of the property. This court held, therefore, that in this case the sheriff was responsible for the want of ordinary care on his part, or on the part of the agent employed by him. Common, or ordinary diligence, is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them. (Story on Bail., § 11.) Or, as Sir WILLIAM JONES has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his own concerns. (Jones on Bail., 6; Tompkins v. Saltmarsh, 14 Serg. Rawle, 275.)
Upon the circumstances, as they are developed in this case, this court was of the opinion that the defendant was only liable for any negligence or want of skill in the care and management of this particular property. But the judge below, on the trial of this case, assuming the remark of Judge SELDEN, that the doctrine enunciated by Judge STORY was somewhat too faintly stated, as applicable to the case of this defendant, proceeded to lay down a more stringent rule in *Page 243 governing this case, and which would have been the correct rule in an ordinary case, when the sheriff removes the property from the possession of the defendant, and takes it entirely under his own charge. In such a case he would be held to high or great diligence, which is of course extraordinary diligence, or that which very prudent persons take of their own concerns. (Story on Bail., § 16.)
The judge at the trial has held this defendant to the doctrine of a borrower's liability, who is bound to extraordinary diligence, and responsible even for the slightest neglect; who is bound to exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs; and, in his case, a want of the most exact and scrupulous caution is regarded by the law as a culpable neglect. (Coggs v.Bernard, 2 Ld. Raym., 909; Vaughan v. Menlove, 3 Bing. N.C., 468; Scranton v. Baxter, 4 Sandf. S.C., 5.) In Coggs v. Bernard (supra), Lord HOLT said, that in the third sort of bailment, scilicet locatio, or lending for hire, the bailee is also bound to take the utmost care, and to return the goods, when the time of the hiring is expired. After a quotation from Bracton, he adds: "From whence it appears that if goods are let out for a reward, the hirer is bound to the utmost diligence — such as the most diligent father of a family uses, and if he uses that he shall be discharged." In Scranton v. Baxter (supra), Chief Justice DUER said the defendant there was liable as a borrower, and that the rules of law fixing the extent of his liability are exceedingly plain and undisputed. He was bound to extraordinary diligence, and was responsible even for the slightest neglect, de levissima culpa; he was bound to exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs; and in his case, it is the omission of the most exact and scrupulous caution that is regarded by the law as a culpable neglect.
It is obvious, therefore, that the most stringent rule has been applied to this defendant, and much more rigid than I think Judge SELDEN intended to apply to a sheriff who took the property, seized on process, into his own care and possession. *Page 244 The plaintiff has, therefore, no cause of complaint with the rulings of the judge in this case, upon the trial. They were much more favorable to him than the facts in this case would warrant. The exceptions thereupon taken cannot be sustained, and the judgment must be affirmed, with costs.
EMOTT, J., expressed no opinion; all the other judges concurring,
Judgment affirmed.