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§ 412. No degrees in negligence. always whether ordinary care under the circumstances has been exercised. The classification into gross, ordinary and slight negligence or care is confusing, and is of no substantial benefit to the inquiry in any special case. It is practically impossible to draw a line between the classes and the classification, though formerly made by the courts, is now almost universally abandoned. It is true the duty owing may be greater in one case than another, and the same act may be sufficient to discharge the duty in one case which would be insufficient in another. Hence, the inquiry must always first be as to what is the duty owing. That settled, the only question is, was ordinary care exercised in the performance of that duty?

§ 413. Acts or omissions.-Negligence may consist in either an act or an omission to act. In other words, ordinary care under the circumstances may require one to do an act, or to refrain from doing an act. The question is, what is the duty, positive or negative, and whichever it is, has the duty been violated? In a wider sense every negligence is an omission, i. e., a failure to discharge a duty owing.

414. Legally responsible person.-If a person is wholly incapable of exercising care in its legal sense, he can not be held guilty of negligence, and upon principle ought never to be held liable in damages for his act. There is an apparent exception in case of infants and lunatics, who, according to the statement of some writers, arę liable for all their torts, including negligence. In most of the decided cases the infant or insane had capacity for some degree of

care, and should have been held liable for failing to exercise such prudence as was possessed. In the remaining cases, where the infant or insane was wholly incapacitated, the recovery of damages can be sustained, not on the ground of negligence in the afflicted one, but in his parents or guardians. The true rule is believed to be that a person incapable of exercising care is not liable for a failure to do so, but if there is any capacity at all, he must exercise such care as he is capable of.

Consistent with the rule are the cases of unconscious agents, e. g., persons who without fault do not and can not know the danger, and act with only such care as their knowledge dictates. Persons under duress are not free to exercise any care, hence not guilty of negligence, but this must be confined to cases where free will is wholly taken away. Persons acting under sudden alarm from any cause that robs them of possession of their senses are not legally responsible.

§ 415. Intoxication.-Voluntary intoxication does not relieve one from exercising all the care he should have exercised if sober. His negligence begins with his becoming intoxicated, and he is responsible for the consequences. Instead of being an excuse, intoxication has been held to be evidence tending to prove negligence.

§ 416. Physical infirmity.-Adults of sound mind are, so far as negligence is concerned, presumed to be equally capable of exercising ordinary care. A man of dull mind is charged with the same kind and degree of care as is a man of brilliant intellect. Physical infirmities, however, must be taken into consider

ation. No one is bound for a failure to exercise a sense that he has not. But he is bound to make up for his defect as best he can by his other senses. While it can not be stated as a rule that less care is required of a woman than of a man, it very often happens, especially in cases involving physical or nervous power, that sex is of importance, in determining what is ordinary care under the circum

stances.

§ 417. The person to whom the duty is owing.— In order to constitute actionable negligence there must have been a duty owing to the party complaining. The fact that there has been a violation of a duty owing to one person does not give another person a right of action therefor, even though the latter receive injury. For instance, a land-owner owes the duty to his invited guests to guard them against the danger of a pit on his land, but he owes no such duty to a trespasser, and will not be liable if the latter falls into the pit.

§ 418. The duty.--Of course, if the act in question does not violate any duty, there can be no action. For example, a traveler on a highway, for his own convenience makes a temporary bridge over a ditch; he owes no duty to any one to build the bridge in any particular way, or to build it at all. Hence he is not liable to another traveler who afterwards tries to cross and is injured.

§ 419. The duty implied by law. In order to be actionable as negligence, the duty that is violated must be one implied by law, independent of contract. Though there may be a contract involved, yet the wrong done must be so far separable from

the contract as to give an independent right of action. For example, a man makes a contract with a railroad company to carry him and his servant. There is no contract with the servant. But there is the duty implied by law from the relation of passenger and carrier. For any injury the servant may recover, because this duty implied by law has been violated. And the master, if injured, may recover damages on the same ground. Though there was a contract with the master, there was also the duty implied by law from the relation of passenger and carrier. Hence the master could recover for the negligence as a tort, or he could recover for the breach of contract.

§ 420. The damage.-Unless some substantial injury was done there can be no action for negligence. Damage is an essential element; and it is obvious that the damage must have been to the plaintiff specially. If from any careless act the plaintiff is injured only in the same kind and degree as the whole public there will be no cause of action.

§ 421. Cause and effect.-The connection of cause and effect between the breach of duty and the injury must be established, otherwise the negligence is not actionable. It must be shown that but for the breach of duty the injury would not have happened. But while this is necessary to be shown, it is not enough. The plaintiff must go further and show that the breach of duty was an efficient cause. For example, if a passenger carrier is guilty of delay so that he arrives at a place on the road where a sudden storm injures the passenger, it might be evident that the injury would not have happened but for the negli

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gent delay; and yet it is also clear that such an injury might equally well happen where the carrier is unusually diligent. The storm and not the carrier's delay is the efficient cause of the injury. It is a uniform rule, however, that if the defendant's act was an efficient cause, he is not relieved by the concurrence of other causes, whether they be called the negligence of others, inevitable accident, or the act of God.

§ 422. The legal connection.-Difficulty lies not only in tracing a causal connection, but also in determining whether the connection is sufficiently close to be cognizable by the law. Theoretically there is no end to the effect of an act, and no cause back of which another cause may not be found. The law, however, is practical and draws lines beyond which the search for cause or effect shall not be prosecuted. It requires that the act shall be shown to be the proximate, not the remote cause of the injury.

§ 423. Definition of proximate cause.-Proximate cause is that which in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred.

A remote cause is one which has so far expended itself that its influence in producing the injury is too minute for the law's notice; or a cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof.

§ 424. Plaintiff's own conduct.-In the search for the causes of an injury, it usually happens that some conduct of the person injured must be considered as

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