— The evidence in the case, shows that the original contract of the defendants, as common carriers, was fully executed, to the satisfaction of the plaintiff. Howe, the forwarding agent of the railroad company, in his deposition, states, that "I told Mr. Knowles that the hay was now delivered in good order; that that was an end of our contract, and that it must now be at his risk against any damage. He replied that he acknowledged he received dt in good order.” The defendants therefore, clearly, are not liable as common carriers.
The case provides, that if in the opinion of the Court, the plaintiff is entitled to recover in any form of declaring, the defendants are to be defaulted.
It is contended that they are liable as bailees, or depositaries. The hay was permitted to remain upon the defendants’ cars, for the accommodation of the plaintiff, and at his special request. Por this the defendant received no additional compensation, nor consideration. At most, therefore, they were naked bailees, or gratuitous depositaries.
The defendants contend that there was no responsibility upon them; that the whole risk t of loss or damage to the hay was assumed by the plaintiff. Mr. Hamlin, who acted as agent for the plaintiff, testified that “ Mr. Howe consented that the hay might remain on the cars, (until it could be shipped,) with the understanding that the whole risk should be on Mr. Knowles. Mr. Knowles asked at the time, “ is there any risk ?” or something like that. I told Mr. Knowles, Howe being present at the time, that there was a risk; that there was a risk in all cases. He asked what risk ? I told him there was the risk of fire and water, or rain; and there were other risks which could not then be thought of; there were a thousand risks. After a little more conversation it finally ended in Mr. Knowles assuming the whole risk; * * * that it should remain on the cars and at his risk until it was shipped.”
This witness further testified that the cars on which the hay then was, were on the principal track, from which they *59must be removed to make room for other trains. The track down on the wharf, and the one where the cars then stood, were the only tracks from which freight could be shipped.
This was on the 16th of July, 1851. On the 18th of the same July, the cars on which the plaintiff’s hay was transported, having been removed, but under whose direction does not appear, to the defendants’ wharf, were precipitated into the dock, by the breaking down of the wharf, in consequence of its being overloaded with railroad iron. This risk, the plaintiff affirms, was not contemplated by the parties, nor assumed by him, but was the consequence of the gross negligence of the defendants, and therefore they should sustain the loss.
Being a bailee without reward, the defendants are bound to slight diligence only, and are not therefore answerable except for gross neglect. Story on Bailments, § 62; Foster v. Essex Bank, 17 Mass. 500.
The authorities do not concur in a uniform standard by which to determine what constitutes gross negligence in a gratuitous bailee, or depositary. Such a bailee, who receives goods to keep gratis, is under the least responsibility of any species of trustee. If he keeps the goods as he keeps his own, though he keeps his own negligently, he is not answerable for them. He is only answerable for fraud, or that gross neglect which is evidence of fraud. Just. Inst. Lib. 3, tit. 15, § 3; Coggs v. Barnard, 2 L’d Raymond, 909, 914; Foster v. Essex Bank, 17 Mass. 500; 2 Kent’s Com. 561, 562.
Judge Stout, in his work on Bailments, § 64, says, “The depositary is bound to slight diligence only; and the measure of that diligence is that degree of diligence, which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. The measure, abstractly considered, has no reference to the particular character of an individual; but it looks to the general conduct and character of a whole class of persons; and so Sir William Jones has intimated on some occasions.” He *60cites Jones on Bailments, 82, 83; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275; Doorman v. Jenkins, 2 Adol. & Ellis, 256.
Both of the above rules, which, on a strict analysis, will not be found in any essential point dissimilar, are subject, under some circumstances, to modification. Thus when the bailor or depositor not only knows the general character and habits of the bailee or depositary, but the place where and the manner in which the goods deposited are to be kept by him, he must be presumed to assent, in advance, that his goods shall be thus treated; and if under such circumstances they are damaged or lost, it is by reason of his own fault or folly. He should not have entrusted them with such a depositary to be kept in such a manner and place.
Applying these principles to the case under consideration, and whatever view we may take of the extent of the plaintiff’s liability by reason of his special contract, the result cannot be doubtful. That it was the expectation of both parties that the hay was to be shipped from the defendants’ wharf, is very apparent. That wharf was open to the inspection of the world. The plaintiff had the same opportunity to observe its condition as the defendants. The iron by which it was ultimately carried down had been deposited upon it months before. No additional incumbrance appears, to have been placed upon the wharf by the defendants after-the arrival of the hay, before it finally broke down.
In view of all the facts in the case, and independent o# the special contract testified to by Mr. Hamlin, we are of opinion that the defendants are not liable. Therefore according to agreement a nonsuit must bo entered.
Shepley, C. J., and Tenney, Appleton and Cutting, J. J., concurred.