They are so many attempts to state the
duty of the bailee specifically, according to the nature of the
bailment and of the object bailed. Those attempts, to be sure,
were not successful, partly because they were attempts to engraft
upon the native stock a branch of the Roman law which was too
large to survive the process, but more especially because the
distinctions attempted were purely qualitative, and were
therefore useless when dealing with a jury. /2/ To instruct a
jury that they must find the defendant guilty of gross negligence
before he can be charged, is open to the reproach that for such a
body the word "gross" is only a vituperative epithet. But it
would not be so with a judge sitting in admiralty without a jury.
The Roman law and the Supreme Court of the United States agree
that the word means something. /3/ Successful or not, it is
enough for the present argument that the attempt has been made.
The principles of substantive law which have been established by
the courts are believed to have been somewhat obscured by having
presented themselves oftenest in the form of rulings upon the
sufficiency of evidence. When a judge rules that there is no
evidence of negligence, he does something more than is embraced
in an ordinary ruling that there is no evidence of a fact.
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