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eye, injuring it severely. The Court, Mr. Chief Justice Shaw, delivering the opinion, held that the defendant was doing a lawful and proper act, which he might do by the use of proper and safe means; and that if in so doing, and while using due care and taking all proper precautions necessary to the exigency of the case to avoid hurt for others, the injury to the plaintiff occurred; the defendant was not liable therefor, and that the burden of proof was on the part of the defendant. In Harvey vs. Dunlop, H. & D. (Lalor), 193, which was before the Supreme Court of New York, the action was trespass for throwing a stone at the plaintiff's daughter, by which her eye was put out. It did not appear that the injury was inflicted by design or carelessness, but on the contrary, that it was accidental, and it was held that the plaintiff could not recover. 'No case or principle can be found,' said Mr. Justice Nelson, in denying a new trial, 'or, if found, can be maintained, subjecting an individual to liability for an act done without fault on his part;' and in this conclusion we all agree.”'

SECTION 86. VIOLATION OF A DUTY BY NEGLIGENCE.

Before negligence can be imputed to a person, a duty, the breach of which is the tort in question, must be shown. This duty may arise in any of the following ways:

(1) The duty may be implied by law.16 It has been held that no action is maintainable against a carrier as for a breach of its general duty for a failure 15 Hart vs. Washington Park Club, 16 Fogarty vs. Finly, 10 Cal., 239; 157 Ill., 9, 45 Am. St. Rep.,

70 Am. Dec., 714; Smith vs. 298; Duvall vs. Baltimore, etc.

Clarke Hardware Co., 100 Ga., R. Co., 73 Md., 516; Currier vs.

163; Phillips vs. Edsall, 121 Boston Music Hall Assoc., 135

II., 535. Mass., 414.

18

19

to carry a passenger on Sunday, because the law implies no obligation to carry anyone on that day.!?

(2) The specific duty, a violation of which is negligence in law, may also be created by statute or ordinance."

(3) The relation out of which the duty arises by implication of the law, may be created by contract.is Some of the more common relations which may be thus created are those of principal and agent, master and servant, and the relation between shippers and common carriers. It is not necessary, however, that the duty neglected should have risen out of contract.20 The principles of negligence are the same whether the negligence is a breach of a duty implied by law in the absence of all contract, or a breach of duty arising out of a contractual relation 21

As a general rule, it is unnecessary, where the duty arises out of a relation created by contract, that there should be privity of contract between the parties to the suit. An exception to this rule is found in the case of contracts of sale where the vendor of an article, not inherently dangerous in character, is not liable to one not a party to the contract of sale who is injured because of defects in construction.23

(4) Finally, the duty which is violated may be that to exercise ordinary or reasonable care and 17 Walsh vs. Chicago, etc., R. Co.

49 Minn., 331; Coughty vs. 42 Wis., 23.

Globe Woolen Co., 56 N. Y., 18 American and English Ency. of

Law, Vol. XXI, p. 460; Siem- 20 Collett vs. London, etc., R, Co., ers vs. Eisen, 54 Cal., 418;

16 Q. B., 984, 71 E. C. L., 984. Central R., etc., Co. vs. Smith, 91 Lake Èrie, etc., R. Co. vs. Acres, 78 Ga., 694; Wright vs. Chi

108 Ind., 548. cago, etc., R. Co., 27 Ill. App., Hayes vs. Philadelphia, etc., 200.

124,

22

Coal, etc., Co., 150 Mass., 457; 10 Collett vs. London, etc., R. Co.,

Denlin vs. Smith, 89 N. Y., 16 Q. B., 984, 71 E. C., 984;

470, 42 Am. Rep., 311. Hayes vs. Philadelphia, etc., 23 Bragdon vs. Perkins-Campbell Coal, etc., Co., 150 Mass., 457;

Co. (G. C. A.), 87 Fed. Rep., Schubert vs. J. R. Clark Co.,

109.

prudence.24 "Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce damage to others, there will be no liability although damage in fact ensues. "25

SECTION 87. CONTRIBUTORY NEGLIGENCE.

The doctrine of contributory negligence is, that one cannot recover compensation for an injury from any negligence, into which negligence of his own has to a greater or less degree entered cause, contributing as a proximate to the complained result.28

Negligence, to be actionable, must be the proximate cause of the injury, and similarly contributory negligence, in order to be a defense must also be a proximate cause of the injury sued on.” The application of the doctrine of contributory negligence is well set out in the decision in the case of The Bernina.28

"The cases which give rise to actions for negligence are primarily reducible to three classes as follows: 1. A, without fault of his own, is injured by the negligence of B; then B is liable to A. 2. A, by his own fault, is injured by B, without fault on his part, then B is not liable to A. 3. A is injured by B by the fault, more or less, of both combined; then the following further distinctions have to be made: (a) If notwithstanding B's negligence, A, with reasonable care, could have avoided the injury, * Ford vs. London, etc., R. Co., 2

Co. vs. Roach, 64 Ga., 636; F. & F., 730; Planter's Ware

Duvall vs. Baltimore, etc., R. house, etc., Co. vs. Taylor, 64

Co., 73 Md., 516; Bolton vs. Ark., 307; Illinois Central R.

Calkins, 102 Mich., 69. Co. vs. Anderson, 184 III., 294; * Bishop on Non-Contract Law, Brown vs. Kendall, 6 Cush.

Sec. 459. (Mass.), 292.

97 Doggett vs. Richmond, etc., R., American and English Ency. of

78 N. C., 305; Pendleton Law, Vol. XXI, p. 463; Hay

Street R. vs. Stallman, 22 Obio man vs. Hewitt, Peake Add.

St., 1. Cases, 170; Morris vs. Platt, » 12 P, D., 58. 32 Conn., 75; Central R., etc.

he cannot sue B; (b) if, notwithstanding A's negligence, B, with reasonable care, could have avoided injuring A, A can sue B; (c) if there has been as much want of reasonable care on A's part as on B's, or, in other words, if the proximate cause of the injury is the want of reasonable care on both sides, A cannot sue B. In such a case A cannot, with truth say, that he has been injured by B's negligence. He can only with truth say, that he has been injured by his own carelessness with N's negligence, and the two combined give no cause of action at common law.

In Pennsylvania R. Co. vs. Aspell,2o the defendant company negligently carried the plaintiff, a passenger, beyond his destination. The speed of the train was slackened somewhat at the switches, but after passing these the speed became greater. The conductor warned the plaintiff not to attempt to get off while the cars were moving, and told him that he would back the train to the station. The plaintiff, however, leaped from the car and was hurt. It was held that he was guilty of contributory negligence, which was the immediate and proximate cause of the injury, and could not recover.

The case of Flagg vs. Hudson,so will serve as an illustration of the class of cases, which do not amount to contributory negligence. In this case, the plaintiff, driving along a highway on a dark night, pulled his horse to the left to avoid going down an embankment on the right of the road, which had negligently been left without a railing. By so going down he was brought into collision with another vehicle which came from the opposite direction. It was held that the failure of the town authorities properly to safeguard the road was the proximate cause of the damage, and that the plaintiff was not chargeable with contributory negligence in being on the wrong side of the road.

20 23 Pa. St., 147.

30 142 Mass., 289.

SECTION 88. COMPARATIVE NEGLIGENCE.

In a few states the doctrine of contributory negligence is modified by what is known as the doctrine of comparative negligence.

The doctrine of comparative negligence, by which a plaintiff in an action for damages for negligence, although himself guilty of contributory negligence, is permitted to recover where the negligence of the defendant is what is termed “gross,'' in comparison with the negligence of the plaintiff, which is termed "slight,” had its most extensive development in Illinois, and was for many years the settled rule of the courts of that state. The different degrees of negligence recognized in the application of the doctrine were gross negligence, which was said to be the want of slight degree; slight negligence, or the want of great diligence, and ordinary negligence, or the want of ordinary diligence. It was accordingly held that a plaintiff might have been guilty of slight contributory negligence and yet have shown no want of ordinary

In later cases, as appears from the reported case, the doctrine is entirely repudiated. 35

The sections of the Georgia code relating to contributory negligence, are as follows: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is

care. 34

31 The citations on comparative

negligence are from American and English Annotated Cases,

Vol. 3, Note, p. 48. 89 Galena, etc., R. Co. vs. Jacobs, 20

Ill., 478; Chicago, etc., R. Co. vs. Harwood, 90 Ill., 425; Chicago, etc., R. Co. vs. Johnson, 103 III., 512; Chicago, etc., R. Co. vs. Stearns, 105 Ill., 554;

Wabash, etc., R. Co. vs. Wal

lace, 110 II., 114. 83 Chicago, etc., R. Co. vs. Johnson,

103 m., 512 84 Chicago, etc., R. Co. vs. Watner,

123 III., 38.
35 Macon vs. Holcomb, 205 III., 643;

Chicago, etc., Coal Co. vs.
Moran, 210 III., 9.

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