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." "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." "Negligence is the unintentional failure to perform a duty implied by law, whereby damage naturally and proximately results to another."" 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 ingham Waterworks Co., 25 L. J. Exch., 212, 11 Exch., 781. This is one of the most famous definitions of negligence, but has been qualified and limited in other decisions. See Smith vs. London, etc., R. Co., L. R., 5 C. P., 102; Summway vs. Hold, 15 Fed. Rep., 880; Chicago, etc., R. Co. vs. Johnson, 103 Ill., 512. • Heaven vs. Pender, 112 B.D., 503. • Baltimore, etc., R. Co. vs. Jones, 95 U. S., 439. "American and English Ency. of Law, Vol. XXI, p. 457. • Jacksonville Southeastern R. Co. vs. Southworth, 135 Ill., 250; Foster vs. Essex Bank, 17 Mass., 479, Am. Dec., 168; Tracy, vs. Wood, 3 Mason (U. 8.), 132 a particularily important place in the law of Bailments." 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.10 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:"1 .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 (Bail Bee Subject of Bailments, Vol. V, Wyld vs. Pickford, 8 M. & W., vs. Arms, 91 U. S., 494; Culbertson vs. Holliday, 50 Neb., 229. " 16 How., 469. ments, 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. "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. Although it is clearly recognized today that negligence is thus essential to liability for unintentional injury, the common law was very slow in adopting this principle. The doctrine that a man was absolutely liable civilly for the direct consequence of his act, was for a long time firmly established. The right to inquire into the state of mind of the party causing the injury, was long the distinguishing mark between criminal and civil actions for trespasses. Thus in "The Case of the Thorns''12 it was said, "If some one cuts trees and the boughs fall on a man and hurt him, in such a case, that man would have an action for trespass, and so, sir, if an archer shoots at a mark and his bow swerves in his hand and against his will he kills a man, this, as has been said, is no felony. But if he hurts a man with his arrow, this man will have a good action of trespass against him, although archery is lawful and the wrong which the archer did was against his will." The modern rule on this subject may be taken as laid down in Castle vs. Dwyer.' 13 In this case the defendant, who was the colonel of a regiment of State militia, after exercising his men at target practice, caused them to be drawn up for a few volleys with blank cartridges. Precautions were taken to see that all balls were withdrawn from the guns, but through some accident balls remained in one or more of the guns, and when the first volley was fired the plaintiff, a spectator, was severely injured. While it was recognized in this case that liability in this class of cases was not absolute and that some negligence must be proved, it was held that there was negligence in this case in firing at all in the direction of a crowd of 12 Y. B., 6 Edw. IV, 7, p. 1, 18. 13 2 Keyes (N. Y.), 169. Vol. IV.-12. people without positive knowledge that each musket contained no more than a blank cartridge. SECTION 85. NEGLIGENCE IN THE FIELD OF TRESPASS ON THE CASE. The leading case on the subject of negligence in the class of torts, which are redressed under an action of trespass on the case, is the case of Parrott vs. Wells, known as "The Nitro-Glycerine Case."" In 1866, the defendants, who were expressmen, engaged in carrying packages between New York and California, by way of the Isthmus of Panama, received at New York a box containing nitro-glycerine to be carried to California. There was nothing in the appearance of the box tending to excite any suspicion of the character of its contents. It was received and carried in the usual course of business, no information being asked or given as to its contents. On arriving at San Francisco, California, its contents were leaking and resembled sweet oil. The box was then taken for examination, as was the custom with the defendants when any box carried by them appeared to be damaged to the premises occupied by them, which were leased from the plaintiff. Whilst an employee of the defendants, by their direction, was attempting to open the box, the nitro-glycerine exploded, injuring the premises occupied by them and other premises leased by the plaintiffs to and occupied by other parties. The defendants had no knowledge of, and no reason to suspect, the dangerous character of the contents. They repaired the injuries to the premises occupied by them; held that they were not liable for the damage caused by the accident to the premises occupied by other parties. 15 Wallace, 524. |