Following the same line of thought, the owner of cattle is not held absolutely answerable for all damage which they may do the person.  According to Lord Holt in the alcove opinion, these animals, “which are not so familiar to mankind” as dogs, “the owner ought to confine, and take all reasonable caution that they do no mischief....  But ... if the owner puts a horse or an ox to grass in his field, which is adjoining to the highway, and the horse or the ox breaks the hedge and runs into the highway, and kicks or gores some passenger, an action will not lie against the owner; otherwise, if he had notice that they had done such a thing before.”

[120] Perhaps the most striking authority for the position that the judge’s duties are not at an end when the question of negligence is reached, is shown by the discussions concerning the law of bailment.  Consider the judgment in Coggs v.  Bernard, 1 the treatises of Sir William Jones and Story, and the chapter of Kent upon the subject.  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.  He rules that [121] acts or omissions proved or in question do not constitute a ground of legal liability, and in this way the law is gradually enriching itself from daily life, as it should.  Thus, in Crafton v.  Metropolitan Railway Co., 1 the plaintiff slipped on the defendant’s stairs and was severely hurt.  The cause of his slipping was that the brass nosing of the stairs had been worn smooth by travel over it, and a builder testified that in his opinion the staircase was unsafe by reason of this circumstance and the absence of a hand-rail.  There was nothing to contradict this except that great numbers of persons had passed over the stairs and that no