The opinion
Foster, J.
(concurring in the result) — While I concur in the result of the court’s decision, nevertheless, I cannot agree to the judicial definition of gross negligence, a term which the legislature itself did not define.
The reasons are stated by Dean Prosser in the following paragraph:
“Although the idea of ‘degrees of negligence’ has not been without its advocates, it has been condemned by most writers, and rejected at common law by the great majority *534 of the courts, as a distinction ‘vague and impracticable in its nature, unfounded in principle,’ which adds only difficulty and confusion to the already nebulous and uncertain standards which must be given to the jury. The prevailing view is that there are no ‘degrees’ of care or negligence, as a matter of law; there are only different amounts of care as a matter of fact; and ‘gross’ negligence is merely the same thing as ordinary negligence, ‘with the addition,’ as Baron Rolfe once put it, ‘of a vituperative epithet.’ ” Prosser on Torts (2d ed.), chapter 5, § 33, 147, 149.