The opinion of the court was delivered,
by Thompson, C. J.The ease on hand was a voluntary bailment, or more accurately speaking a bailment without compensation, in which the rule of liability for loss is usually stated to arise only on proof of gross negligence. The same idea is expressed with sufficient precision by the words used by the learned judge below, to wit, want of ordinary care. Whether there was want of ordinary care in the agents of the bailee in this case, was the question before the jury. On this point there was very material evidence, and it was properly referred to the jury with adequate instructions by the learned judge, to determine the question of negligence or the want of ordinary care. In the state of the testimony this was peculiarly the province of the jury. The court could not determine it. There was no error, therefore, in submitting the testimony on the point to the jury with instructions to find whether there was want of ordinary care in regard to the subject of the bailment or not. *
The plaintiff in error complains of the rejection by the court of the proposed question to the witness Champneys, the teller and witness on the stand, whether from the circumstances detailed in the question, and which he had stated in his testimony in regard to the delivery of the bonds to the stranger personating Smith the bailor, he believed him to be Smith the owner ? It was not pretended by the plaintiff that the teller had given them away under any other circumstances than mistake. Such an inquiry was therefore irrelevant. The testimony given by the witness was to show care, and to have proved by him that he believed the person to be the true owner would not have given any other character to the facts than they would possess without the testimony. It was not necessary to prove by the witness that he believed he was giving the bonds to the true owner. The gravamen of the plaintiff’s action was negligence, not wilfulness. The witness might have believed that he was giving the bonds to the true owner, as no doubt he did, and been guilty of negligence in delivering them notwithstanding. The question if answered in the affirmative would have illustrated *55nothing, and added nothing to the' facts, hut might have led the jury from the true subject of inquiry arising out of the acts of the teller. For these reasons we see no error in refusing the offer.
Another ground of complaint on part of the plaintiff in error was the refusal of the court to allow the question to be asked the teller, whether he had exercised the same care and diligence in regard Jo the plaintiff’s bonds, as in the general transactions of the business of the bank. This was properly refused. He had detailed the circumstances of the deposit, and the precise manner of the loss, and it was for the jury to say whether from this, and the evidence in the ease, there was want of ordinary care. It was out of place, therefore, to supplement this-by the opinion of the teller that what he had done in the matter was ordinary care. The jury would judge of this. Had the loss been by unknown means, the offer would doubtless have been admissible. But the means were known and detailed, and it would have been error to have allowed the witness to have testified that the loss was in the exercise of ordinary care, and this it was the object of the offer to prove. That was for the jury to decide on the testimony.
There was nothing whatever in the alleged terms of the bailment, even if conclusively shown to have been agreed upon, viz., that the bank would not be liable for the loss of,the bonds “ even if they were stolen.” The limitation of liability did not and could not extend to cover the gross negligences of the bailee. We have more than once held that a bailee cannot stipulate against liability for. his own negligence.
We have examined all the specifications of error in the case, and finding nothing wrong in the record, the judgment is affirmed.