(concurring). On this appeal, the only challenge to the verdict in favor of the defendant is that the court erroneously instructed the jury with respect to respondeat superior, notice, burden of proof and contributory negligence. Essentially, there is no dispute about the facts. However, it may be helpful to emphasize certain aspects of what transpired. Raphael Pereira, an employee of Conrail, was the attendant at the appropriate train entrance. Mason, the plaintiff’s niece, allegedly asked Pereira to watch the suitcase and he allegedly said yes. Mason left the suitcase right next to Pereira. Pereira did not take it from her hand or move it in any way. Pereira, when confronted with a statement made by him, admitted that he agreed to watch the suitcase. When Mason returned, the suitcase was gone. Plaintiff, Voorhis, then sued the Consolidated Rail Corporation (Conrail) for the value of the lost property on a theory of breach of bailment. There was testimony at trial regarding the duties of an “usher”, which was Pereira’s job title. It was stressed that an usher was not involved with baggage, and the job description in evidence did not include caring for baggage. Mason conceded that she knew that “red caps” generally *502are for luggage. On the other hand, the testimony indicated that Pereira had “watched” luggage in the past. The court in its instructions described a bailment contract as requiring delivery of possession from one person to another to be returned on demand. It requires acceptance by the bailee. The court stated that plaintiff has the burden of proving this contract. The court then instructed the jury as to the law of negligence, assuming that a bailment had been created. The court charged that Conrail would be liable for the acts of its employee, Pereira, if the jury found that Conrail “should have anticipated that an employee such as Mr. Pereira would possibly enter into such an arrangement * * * and if you further find that the act was in the interests of the employer, Conrail”. It is urged by the plaintiff and accepted by the dissent that these instructions erroneously restricted the jury. They suggest that the jury should have been instructed that if the act of Pereira was performed while doing Conrail’s work, even if the employee disregarded the instructions of his employer, then the employer would be liable, mainly relying on Riviello v Waldron (47 NY2d 297, 302). In my opinion, this represents too narrow a view of the doctrine for which Riviello stands. True, the dissent quotes accurately from that opinion where it recites (p 302) that the test of respondeat superior “ ‘ “[is] whether the act was done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions” ’ ”. But in the very next paragraph (pp 302-303), the Riviello court was careful to qualify this statement, by continuing: “Thus formulated, the rule may appear deceptively simple but, because it depends largely on the facts and circumstances peculiar to each case, it is more simply said than applied (see Riley v Standard Oil Co., 231 NY 301, 304). For, while clearly intended to cover an act undertaken at the explicit direction of the employer, hardly a debatable proposition, it also encompasses the far more elastic idea of liability for ‘any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act’ (2 Mechem, Agency [2d ed], § 1879, p 1461). And, because the determination of whether a particular act was within the scope of the servant’s employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury (Rounds v Delaware Lackawanna & Western R. R. Co., 64 NY 129, 137-138; see McLoughlin v New York Edison Co., 252 NY 202, 208; Note, 45 U of Cin L Rev 235, 236). That is not to say there are no useful guidelines for assessing whether the conduct of a particular employee, overall, falls within the permissible ambit of the employment. Among the factors to be weighed are: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated (see Prosser, Torts [4th ed], § 70, p 461; Restatement, Agency 2d, § 229).” Our brethren in the Second Department have placed Riviello in a perspective which seems closer to the intent of that case. “Despite its affirmance in the Court of Appeals, Makoske’s [Makoske v Lombardy, 47 AD2d 284, affd 39 NY2d 773] reception by the judicial system was less than overwhelming (see, e.g., Goldfarb v Hudson, 75 AD2d 775; Nero v Ris Paper Co., 60 AD2d 340; Tortora v La Voy, 54 AD2d 1036), and only Riviello v Waldron (47 NY2d 297) has carried the day for foreseeability. The actor in Riviello was a short-order cook who, while mingling with patrons at his employer’s bar as he was wont to do, began ‘flipping’ a knife and accidentally struck the plaintiff in the eye. In concluding that the scope of authority issue was for the jury, the Court of Appeals observed (p 304) that: ‘for an employee to be regarded as acting within the scope of his employment, the *503employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected’.” (O’Boyle v Avis Rent-A-Car System, 78 AD2d 431, 442.) The more widely accepted version of the rule imputing responsibility for the acts of an employee to his employer is that the servant" ‘was engaged at the time in doing his master’s business, and was acting within the general scope of his employment” (Sauter v New York Tribune, 305 NY 442, 445). The instructions given by the Trial Judge herein conformed, perhaps not in haec verba, substantially to the Riviello standard. It is next urged by plaintiff that the jury was improperly instructed regarding the contents of the suitcase. The court charged that the jury may find that Pereira reasonably could not have known that the suitcase contained valuable jewelry and the jury could consider whether plaintiff made such a disclosure. The plaintiff urges that the railroad should be on notice that a woman’s suitcase may contain valuable jewelry (relying primarily on Hasbrouck v New York Cent. & Hudson Riv. R. R. Co., 202 NY 363). There may well be a question as to whether a bailee accepting a closed suitcase can be held responsible for articles which may not reasonably be expected to be contained in it, in the absence of explicit notice (Crosby v 20 Fifth Ave. Hotel Co., 173 Misc 595, mod and affd 173 Misc 604; Waters v Beau Site Co., 114 Misc 65). Conrail notes that Hasbrouck was decided in 1911 when the expectation was that people would travel with valuables but that, today, on short train trips, it is not expected that people would carry such valuables. Even if the Judge’s charge was erroneous, however, it would not warrant reversal, since the jury, in finding no liability on the part of defendant, did not reach the issue of damages, even if the suitcase did contain jewelry. It is then urged that the court improperly placed the burden on plaintiff of proving gross negligence. However, that burden was correct. Even Hasbrouck (supra, p 374), cited by plaintiff, concedes that a railroad employee can be a gratuitous bailee with a burden of slight care and liable, therefore, only on a showing of gross negligence. The prevailing law is that a bailment is classified as being one for the sole benefit of the bailor; or one for the sole benefit of the bailee; or one for the mutual benefit of both parties (see 9 NY Jur 2d, Bailments and Chattel Leases, § 6, and the cases there cited). The standard of care to which the bailee is required to conform will vary with the above characterization of the bailment (see 9 NY Jur 2d, Bailments and Chattel Leases, §§ 89-90). Dependent upon and varying with the category to which the bailment is assigned, the bailee will be liable either for gross negligence, slight negligence, or ordinary negligence. If a bailment existed in this case, it was accepted by both plaintiff and defendant as being one for the sole benefit of the bailor and hence, for the plaintiff to recover, she had to establish that the bailor was grossly negligent. Perhaps the time has come to abandon the “three bears” classification for bailments, which rigidly imposes a specified degree of due care on the bailee, depending upon the category of the bailment which is assigned to the relationship. Since the invention of trespass on the case some time during the fourteenth century, to comprehend claims for miscellaneous unclassified torts, the direction of the law of torts has been toward a more flexible and realistic appraisal of what actually took place between the parties. This development has accelerated in the last quarter of a century (at least where the law has continued to impose liability based on fault). Certainly, the acceptance of comparative negligence has been a giant step in this direction. It seems particularly relevant to note that the tripartite classification of those entering on land, and imposing varying degrees of responsibility on the landowner, has been rejected by the Court of Appeals (Basso v Miller, 40 NY2d 233). This approach has enabled the trier of the facts, be it jury or Judge, to reach a result *504which makes for greater fairness. However desirable a similar change in the law of bailments might be, it is not the law today. The plaintiff, the defendant and this court are still bound by the threefold classification of bailments and the threefold degrees of responsibility. Even if a bailment were created in this case, it was purely a gratuitous one, made for the benefit of the bailor. Accordingly, the Trial Judge was quite correct when he instructed that in order for plaintiff to recover, she was obligated to prove gross negligence. Finally, it is argued that contributory negligence should not have been submitted to the jury as an issue in a bailment case. However, this contention is not supported by law. (See 9 NY Jur 2d, Bailments and Chattel Leases, § 126, and the cases there cited.) If a bailment is created, negligence on the part of the bailor can serve to exonerate (at least partially, CPLR1411-1413) a bailee (Osborn v Cline, 263 NY 434, 438; Wamser v Browning, King & Co., 187 NY 87; J. W. Mays, Inc. v Hertz Corp., 15 AD2d 105, 110). All in all, the Trial Judge instructed the jury in accordance with the law, and the jury reached a result in accordance with the law and a very reasonable view of the facts.