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CHAPTER XIII.

NEGLIGENCE.

SECTION 82. THE ACTION FOR NEGLIGENCE.

Strictly speaking negligence is not a distinctive tort, but rather a factor which determines liability, and which may appear in a number of different torts. To save constant repetition, however, negligence is here treated by itself as if it were truly a distinctive tort. Negligence, as redressed by the law, figures almost exclusively in wrongs which result in physical injury to the body, or forceful damage to property. "Negligence may be an element in either an action of trespass or of trespass on the case, if injury is directly done in the immediate performance of a negligent act, as where a carriage driver so negligently guides his vehicle that it runs over a pedestrian or collides with another carriage, the tort comes within the conception of trespass. If the damage complained of is not thus directly done, but follows consequentially, as is said, or from negligence in the creation or maintenance of an agent of harm, as where a carriage is negligently left unguarded and some one is injured thereby, the tort falls under the head of secondary trespass.

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I "It has been customary to treat

the subject of Negligence as if it were a specific injury by itself, instead of merely, & question of responsibility liable to arise in connection with various kinds of harm; but this obscures the true situa

tion.” J. H. Wigmore in 8

Harvard Law Review, 206. • Negligence by telegraph com

panies in sending messages is an exception to this rule. Street's Foundations of Legal Liability, Vol. 1, p. 71. Id., Vol. 1, p. 71.

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SECTION 83. DEFINITIONS AND CLASSIFICATIONS OF

NEGLIGENCE.

Many different definitions of negligence have been given among the best of which are the following:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do." 4

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff without contributory negligence on his part has suffered injury to his person or property.

“Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done." 6

"Negligence is the unintentional failure to perform a duty implied by law, whereby damage naturally and proximately results to another.7

Negligence is sometimes divided into gross, ordinary and slight. This classification was introduced into the Common law from Civil or Roman law, and was for a time very generally followed, occupying • Alderson, J., in Blyth vs. Birm- • Heaven vs. Pender, 112 B.D.,503. a particularily important place in the law of Bailments."

ingham Waterworks Co., 25 • Baltimore, etc., R. Co. vs. Jones, L. J. Exch., 212, 11 Exch., 781.

95 U. S., 439. This is one of the most famous American and English Ency. of definitions of negligence, but

Law, Vol. XXI, p. 457. has been qualified and limited & Jacksonville Southeastern R. Co. in other decisions. See Smith

Vs. Southworth, 135 II., 250; vs. London, etc., R. Co., L, R.,

Foster vs. Essex Bank, 17 5 C. P., 102; Summway Vs.

Mass., 479, Am. Dec., 168; Hold, 15 Fed. Rep., 880; Chi

Tracy, vs. Wood, 3 Mason (U. cago, etc., R. Co. vs. Johnson,

S.), 132 103 II., 512.

The present tendency of the law is to break away from this classification, and to hold that there is only one kind of negligence, which consists of a failure to exercise the degree of care required under the circumstances of the particular case.ro Gross negligence has been declared to be only ordinary negligence with the addition of a "vituperative epithet.” This subject is thus described by the Supreme Court of the United States, in the case of The Steamboat New World vs. King:11

"The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators of the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer vs. Gowen, 18 Maine, 177, the Supreme Court of Maine says: 'How much care will in a given case relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact depending on a great variety of circumstances which the law cannot exactly define.' Mr. Justice Story (Bailments, Sec. 11) says: 'Indeed, what is common or ordinary diligence is more a matter of fact than of law,' If the law furnishes no definition of the terms gross, negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.

See Subject of Bailments, Vol. V,

Subject 12.
Wyld vs. Pickford, 8 M. & W.,

460; Milwaukee, etc., R Co.

vs. Arms, 91 U. S., 494; Cul-
bertson vs. Holliday, 50 Neb.,

229.
u 16 How., 469.

"Recently the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson vs. Brett, 11 Mees & Wels, 113; Wylde vs. Pickford, 88 Lb., 443, 461, 462; Hinton vs. Dibbin, 2 Q. B., 651.) It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such cases as Tracy, et al. vs. Wood, 3 Mass., 132, and Foster vs. The Essex Bank, 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the Civil Code of France, have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice useless in practice, and presenting inextricable embarrassments and difficulties."

SECTION 84. NEGLIGENCE IN THE FIELD OF TRESPASS.

The question of negligence in the field of terspass is only important where the injury was occasioned unintentionally; if a person intentionally does an injury, by a direct application of force, he is absolutely liable. If the injury was unintentional, liability may still attach, to the person inflicting such injury, through the presence of this element of negligence.

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