This is an action brought to recover damages for injuries sustained September 13, 1892, by a sailing yacht, resulting, as is alleged, from the negligence and carelessness of the defendant, the Western Union Telegraph Company, a corporation organized under the general statutes of New York, in not promptly delivering a message written upon one of the defendant’s regular message forms and intrusted by the plaintiff to it for transmission to James R. Mack at Bath Beach, Long Island, as follows: “ Ask Garry take boat to club house, going to storm. Riley.”
*222The defendant, while admitting that it received the message at one of its offices, 233 Grand street in the city of New York, and that plaintiff paid the sum demanded for the service, twenty-five cents, denies all negligence, carelessness and want of skill in the transmission of the message, and by way of special defense and in mitigation of damages alleges that said money was received by it under the terms of a. special contract between plaintiff and defendant, whereby plaintiff agreed that defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same, and further alleges that plaintiff’s said message was an unrepeated message, and was delivered to defendant to be transmitted as such, and was paid for as such unrepeated message.
Defendant also alleges that all delay which may have occurred was due to atmospheric disturbances and causes beyond human control, and not from any negligence or unskillfulness on its part.
The plaintiff offered evidence tending to prove that plaintiff delivered the message in question at one of the defendant’s offices, at 233 Grand street in the city of New York, at twelve-fifteen o’clock in the afternoon of September 13,1892; that it was written upon one of defendant’s regular message blanks, and that the plaintiff at the time knew of the conditions upon the face and back of the blank; that it was delivered by the defendant’s messenger at the Grange, in Bath Beach, to one Annie Hutton for the addressee, who receipted for it at two-forty-five o’clock on the same day; that Miss Mack, daughter of the addressee, received the message from a little girl between three-five and three-thirty o’clock; that Miss Mack handed it to a daughter of the plaintiff; that Pauline Grumbrede, a daughter of plaintiff, received it from Miss Mack “ about three-thirty p. m.,” and that she took it down to the pier and gave it to Garrett Van Cleef about ten minutes after she received it.
*223Mr. Van Cleef testified he received it about four p. m., to the best of his recollection, and that at the time he received it Mrs. Grumbrede asked him if he could take the boat to the yacht club, and he answered, “ If I had had the dispatch an hour ago I could have done so, but not then ; it was impossible for me alone to take it then.” The storm came up about noon, increasing in violence throughout the day.
The boat went ashore some time during the night, after seven or eight o’clock in the evening.
On the part of the defendant the testimony showed that the message was sent from the Grand street office in the usual course of business, and was received at the main office of the defendant, 195 Broadway, New York city, before one o’clock, at which time the operator “ called ” the Bath Beach office, but could not “ raise ” it, and she made a note to this effect on the back of the message. Similar attempts were made, with like result, to communicate with the Bath Beach office at one-fifteen, one-twenty-five, one-thirty, one-forty, one-fifty, two and two-ten p. m., all of which were noted on the back of the message. The message was sent at two-ten p. m., was received at Bath Beach at two-twenty-two o’clock, and was sent out for delivery in the usual course of business about two-forty p. m. It further appeared that the telegraph wire between New York city and Bath Beach was “ grounded ” or “ dead ” from twelve o’clock noon to two-twenty-two f. m. of that day. It was delivered at the “ Grange,” where it was addressed, at two-forty-five p. in, as shown by plaintiff’s witnesses. The jury found for plaintiff in the sum of $231.50.
Defendant moved for a new trial, which was denied, and judgment was entered for the amount of the verdict and costs, aggregating $360.87.
Defendant appeals from both the order denying the motion for a new trial and from the judgment.
The statement of the terms by the defendant upon which messages would be transmitted over its lines, and the knowledge and acceptance of these terms by the plaintiff, constitutes .a valid contract as to the terms upon which the message in *224question was sent. Young v. Western Union Telegraph Co.,. 65 N. Y. 163, 165.
This message was not repeated, and one of the terms of this-contract was that the defendant would not be liable for mistakes or delays i/n the trcmsmission or delivery, or for nondelivery of amy umrepeated message, beyond the amount received for sending the same * * * nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages.
These conditions are reasonable and not against public policy; on the contrary, they subserve it to carry out the objects for which telegraphic associations are created, and especially to secure the receipt of a message in the words in Avhich it is written and delivered for transmission, and under their general power the defendant is authorized to prescribe such regulations as it deems necessary to guard against errors or delays by reason, of the negligence or omission of. its employees in the transmission or delivery of messages, and to declare that a party who fails to comply therewith should assume all risks and losses resulting from such errors or delays. Breese v. U. S. Telegraph Co., 48 N. Y. 138, 139, 141.
Unless then there is some evidence of willful misconduct or gross negligence on the part of the defendant, the plaintiff’s damages, even if the defendant is negligent, are limited to the amount paid for sending messages. .For all the authorities declare, in case where no contract has been made and -where the message is sent unconditionally^ that mere delay unexplained is prizna facie evidence of negligence, but not so, in view of the terms of the contract, in order to entitle plaintiff to recover any greater sum than provided for by the contract.
Allen, J., in Baldwin v. U. S. Telegraph Co., 45 N. Y. 751, 752, says: “ But an error in transcribing the direction, and a consequent misdelivery, áre prima facie evidence of neglect and want of care of the ooerator, and cast the burden upon the company in explaining the error and showing that it occurred without fault. This is upon the supposition that the message is received for transmission unconditionally. *225For the purposes of this appeal, it is assumed, but not decided, that this message was not subject to the terms and conditions ordinarily attached to the receipt of messages for transmission, but that the defendant is subject to all the liability which legally results from a receipt of a message and a naked agreement to transmit the same to its destination for a reasonable compensation paid therefor. If the terms and conditions ordinarily imposed were a part of the contract, the question would arise whether the defendant would not be protected against liability for the ‘error and delay’ in the delivery of the dispatch. See MacAndrew v. Electric Tel. Co., 17 C. B. 3 ; Ellis v. Am. Tel. Co., 13 Allen, 226.”
It is conceded that the day on which the message was sent was a stormy one, which began at eleven-thirty o’clock a. m., and increased in violence toward the night.
It appears by the testimony that besides this the operator in the general office in Mew York city made repeated efforts to transmit said message between one and two-twenty p. m., and that the wire was “ grounded ” or “ dead,” and thus the defendant was unable to send any message until two-twenty o’clock p. m., when for the first time it secured communication; that the operator at Bath Beach at about twelve-forty-five o’clock p. m. discovered his wire connecting with Mew York city was in trouble or “ grounded ” or “ dead,” and he was prevented from transmitting any messages over the same. He endeavored to transmit messages between that time (twelve-forty-five p. m.) and two-twenty o’clock p. m., when he received the one in question. That he kept testing between the intervals of ten and fifteen minutes until he finally received this message. Thus it seems that this interruption and delay was not willful, nor was it due to any gross negligence.
The authorities recognize a distinction in the degree of negligence by the' degree of* care required (Bouvier’s Law Dictionary, 225) as follows : “ Thus, in the first class, the bailee is required to exercise only slight care, and is responsible of course only for gross negligence. In the second, he is required to exercise great care, and is responsible even for slight neglect.
29 *226In the third, he is required to exercise ordinary care, and is responsible for ordinary neglect.”
Gross negligence is, therefore, the want of slight care.
We have examined the testimony carefully and cannot find any evidence showing a want of slight care, and when such arises, it then becomes a question of law for the court, and it is error for the court to submit the case to the jury. They cannot be permitted to speculate or conjecture, nor to determine the question by bias, prejudice or passion. There must be some foundation as well as substance in the evidence upon which they can act. The defendant did all that could be done under the circumstances, and the delay was not unreasonable. It was undoubtedly for the purposes of guarding against such occurrences as the present that the contract contained in the blank message was made. Pearsall v. W. U. Tel. Co., 124 N. Y. 266, 267, 269; Kiley v. Western Union Tel. Co., 109 id. 235, 236.
Alley, J., at page 236, says: “ It is not the case of a message delivered to the operator and not sent by him from his office.” - This certainly would be gross negligence.
Daly, Ch. J., in Sprague v. Western Union Tel. Co., 6 Daly, 200; 67 N. Y. 590, says: “ The expense which the plaintiff was necessarily put to through their neglect is not embraced by any of the stipulations limiting the damages to the amount received for sending the message.”
“ This was not a mistake or dela/y in the transmission or delivery, or a nondelivery, but an entire breach of the contract by a neglect to send the message at all, and which rendered them liable for such damages as were the direct, natural and proximate consequences of their total neglect to do what they had to do.” De Rutte v. N. Y. Telegraph Co., 1 Daly, 547.
Here, in our judgment, is a clear 'and déeisive explanation of what is willful misconduct or gross negligence. The cases cited by the respondents have been carefully examined and we find that they do not apply.
They are either where the contract was not as broad as the *227one at bar, or, in other words, not containing the same limitations, or was, as in Milliken v. Western Union Tel. Co., 110 N. Y. 403, pn a new contract, without limitation, made with the person to whom the message was to be sent or delivered. There being no evidence of willful misconduct or gross negligence, the trial justice erred in not granting the defendant’s requests; that the court direct a verdict for the plaintiff not to exceed twenty-five cents, the amount paid for the telegram or message; that the court charge the jury that there is no evidence from which they can find that the defendant was guilty of any negligence in failing to deliver the message, or in delay as to the delivery.
For these reasons, judgment should be reversed and new trial granted, with costs to the appellant to abide the event.
17EWBURG-EB, J., COUCUrS.
Judgment reversed and new trial granted, with costs to appellant to abide the event.