SECTION II.

SPECIFIC TORTS.

Events caused by negligence. -Negligence in itself is not a tort, but, like fraud and malice, is only an element of tort, but the cases wherein negligence is the main element warranting a recovery are now so numerous, that the law of negligence has become very important. Bigelow on Torts lays down the following statement of duty for the more common forms of negligence: "A, seeing or knowing, or being in a situation to see or know, that acts or omissions of his, in failing to exercise ordinary care, skill or diligence towards B, or, in matters of care, skill, or diligence, to show ordinary regard for B's rights, in a particular place or juncture, will be apt to do harm to B, owes to A the duty not to be guilty of such acts or omissions, to the damage of B".

Negligence constituting a cause of civil action is such an omission by a responsible person to use that degree of care, diligence and skill which it was his duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintentional damage to another. The supreme court of Wisconsin adheres to its early ruling of classification of negligence into three degrees. Where there is simply an absence of that degree of care in the performance of duty which persons of extraordinary prudence are accustomed to use, the same has been designated as "slight negligence". Where there is such want of care as persons of ordinary prudence observe in the performance of duty, the same has been designated as "ordinary negligence, and that includes not only mere inadvertence or inattention to duty resulting in an injury to another, but also a want of the means or capacity to prevent such injury when the same is known to be imminent. On the other hand, where a person in the presence of imminent danger to another has a duty to perform to prevent such other from being injured, and with knowledge of the danger and the present means and capacity to prevent it, rashly, recklessly or wantonly fails to do what he can to prevent such injury, the same has been designated as "gross negligence". The negligence must be the proximate cause of the injury for which recovery is sought. "Proximate cause may be defined as that cause, which, in natural and continuous sequence, unbroken by any

efficient intervening cause, produced the result complained of and without which that result would not have occurred, the result being such as ought to have been foreseen in the light of all the attending circumstances." The causal connection must actually be broken to relieve the defendant. The essential elements of a right of action based on negligence are: (1) Negligence, (2) Breach of duty, (3) Damage. "In all cases where the right of recovery is based upon negligence not wilful, nor such that the person injured was deceived or misled by the negligent act complained of, the plaintiff in order to recover must himself have exercised care, no matter how clear the negligence of the defendant. Any want of ordinary care on the part of the party injured, which contributes to produce the injury, will defeat a recovery." But where a person is compelled to act at one in the presence of imminent danger, he cannot be held guilty of negligence, as a matter of law, merely because he did not choose the best means of escape from the danger.

Negligence cases arise in many ways, but the principles above stated apply to them all, unless the standard of liability is affected by the relations of the parties. For the liability of hotel and boarding-house keepers, common carriers, telegraph and telephone companies, and the different kinds of bailees, the reader is referred to the chapter on Bailments.

A physician or surgeon, or one who holds himself out as such, whether duly licensed or not, when he accepts an employment to treat a patient professionally, must exercise such reasonable care and skill in that behalf as is usually possessed and exercised by physicans and surgeons in good standing, of the same system or school of practice, in the vicinity or locality of his practice, having due regard to the advanced state of medical or surgical science at the time. He does not undertake that he will effect a cure.

An attorney possessed of a reasonable amount of information and skill, according to the duties which he undertakes to perform, and exercising what he possesses with reasonable care and diligence in behalf of his client, is not liable for errors in judgment, whether in matters of law or discretion. He does not guarantee that he will win a

case.

Our statutes provide that all belting, shafting, gearing, wheels, etc. dangerous to employes must be securely fenced

or guarded. If the statute has not been complied with, the employer may be held liable for resulting injury, provided the employe injured has not been guilty of contributory negli

gence.

A few Wisconsin negligence cases will now be given to illustrate the principles mentioned above:

It was gross negligence in an engineer, having knowledge of imminent peril to a team and its driver about to cross a railroad track, under conditions obstructing the view of such driver, to permit his locomotive to pass over a distance of five hundred and forty feet without doing anything to prevent collision.

It being unlawful for persons (with some exceptions) to be armed with a revolver, a person not within the exception is liable for an injury inflicted by him with such weapon by its accidental discharge. It is immaterial that the person injured was consenting either as to the former being armed or his use of the weapon.

It is negligence for the owner of a steam threshing engine, though properly equipped, to set such engine on the windward side of and near dry stacks of grain, when the wind is strong.

The fact that a person was traveling for pleasure on Sunday does not affect his right to recover for an injury received from a street railway.

The mere fact that the plaintiff at the time of the accident was violating the law of the road, will not prevent a recovery, if such unlawful act did not produce or directly contribute to produce the accident.

In the absence of any law or ordinance prohibiting it, whether it is actionable negligence to temporarily leave articles used in the occupant's business in front of his place of business, is a question of fact for the jury. If an ordinance permits such temporary deposit, the occupant will be protected, if not guilty of negligence otherwise.

There being no duty on the part of a lot owner to guard an excavation thereon, when not so near the public street so as to endanger travelers, he is not liable for injury to those trespassing on his premises.

One whose horses are injured by the negligence of another in puting dangerous substances upon a driveway, may recover damages therefor, if his horses are rightfully there, whether by license or strict right.

Though the right of navigation is paramount to that of fishing, yet one who negligently runs over a fisherman's net, which he might have avoided without prejudice to his journey, is liable for the damage done, even though his act was not malicious.

Where two independent contractors were engaged in tearing down a building which collapsed, injuring an employe of one other than the defendants, both contractors were liable, as both produced the injury by their negligence.

In an action for injuries caused by negligence, the intoxication of the plaintiff is a circumstance to be considered by the jury on the point of contributory negligence. It does not shift the burden of proof. The burden of proof in all cases is on the defendant to show that the plaintiff was guilty of contributory negligence and therefore should not recover.

Where a child is of tender years, it is a question whether the parent was or was not guilty of contributory negligence in committing the child to a temporary custodian, and whether such custodian was of proper age and discretion to suitably care for it.

An adult person of foreign birth, who cannot read or write English, who signs a promissory note to lightning rod agents for a sum which he himself offers in settlement of their claim against him, not asking for information which he could have received and knowing that he was dealing with swindlers, is guilty of contributory negligence and is liable on the note to a bona fide purchaser for value.

The contributory negligence of a driver of a private conveyance in which another person is voluntarily riding at the time of his injury is imputable to the person so injured and will prevent a recovery.

Where an infant eighteen months of age gets upon the railroad track in consequence of the failure of the company to erect the fences required by law, the parents being in the exercise of ordinary care, the company is liable for injury to the infant. It may be said that the standard of care required of infants varies with their age and capacity. Most cases hold that a child from one to seven years of age is not capable of being negligent as a matter of law. Our supreme court says: "An infant of the age of eighteen months is utterly incapable of exercising any care or discretion in any matter whatever. He is incapable of comprehending the

imminent danger of remaining on a railroad track when a train of cars is approaching. He is necessarily incapable of exercising any judgment or forethought, can neither apprehend the danger to which he is exposed, nor take suitable means to protect himself against it. Negligence cannot properly be imputed to him since he knows nothing of care, diligence or danger; and to say that he is bound to the same legal rules in regard to the exercise of care and diligence in avoiding danger and escaping the consequences of neglect on the part of others, which are applied to persons of full age and capacity, seems to us a most unreasonable doctrine. All that is demanded in such cases is, a degree of care or diligence equal to the capacity of the child."

The duty is absolute to look and listen before going upon either a steam railroad track or an electric street railway track, and to see and hear an approaching car, if within plain view and hearing to a person exercising his senses of hearing and seeing with ordinary prudence to detect it, having regard for the dangers reasonably to be apprehended, and failure to perform that duty, or after performing it, to keep out of the region of danger, is negligence per se. This is not a mere rule of evidence which a jury may be permitted to consider, but a rule of law to be applied by the court, when the facts are undisputed, and by the jury under direction of the court when the facts are disputed.

Plaintiff, a man eighty years old, blind of one eye and with dull hearing, was driving along the street leading to a railroad crossing, and saw two trains passing along in the same direction. After waiting until the second train was passed, and without looking or listening for other trains, he drove upon the track, and was injured by a third train coming from the same direction, which he could have seen had he looked. He was held to be guilty of contributory negligence and could not recover for injuries sustained.

The rule is inflexible that a party approaching a railroad track, intending to cross it, is bound to both look and listen, and a failure so to do will prevent recovery in case of injury.

If the view of a traveler on the highway approaching a railway crossing is so obstructed that he cannot see an approaching train in time to stop his team before colliding with it, and he knows that a train is due at such crossing at