The Court in the course of their decision in this case said: "The defendants, being innocently ignorant of the contents of the case received in the regular course of their business, were not guilty of negligence in introducing it into their place of business and handling it in the same manner as other packages of similar outward appearance were usually handled. 'Negligence,' has been defined to be 'the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.' Blyth vs. Birmington Water Works, 11 Exch., 784. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. What would be extreme care under one condition of knowledge, and one state of circumstances would be gross negligence with different knowledge and in changed circumstances. The law is reasonable in its judgment in this respect. It does not charge culpable negligence upon anyone who takes the usual precautions against accident, which careful and prudent men are accustomed to take under similar circumstances. Shear vs. Redb., Sec. 6. "The case of Pierce vs. Winsor, 2 Cliff, 18, decided by Mr. Justice Clifford, in the Circuit Court of the District of Massachusetts, furnishes a pertinent illustration of this doctrine. There a general ship was put up for freight. Among other freight offered and taken was mastic, an article new in commerce, and which was so affected by the voyage that it injured other parts of the cargo in contact with it, and caused increased expenditure in discharging the vessel. The court held the shipper and not the charterer liable, and observed that "The storage of the mastic was made in the usual way, and it is not disputed it would have been proper, if the article had been what it was supposed to be, when it was received and laden on board. Want of greater care in that behalf is not a fault, because the master had no means of knowledge that the article required any extra care or attention, beyond what is usual in respect to other goods.' "This action is not brought upon the covenants of the lease; it is in trespass for injuries to the buildings of the plaintiff, and the gist of the action is the negligence of the defendants; unless that can be established they are not liable. The mere fact that injury has been caused is not sufficient to hold them. No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act, or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of. "The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a prima facie case, which the carrier must overcome. His contract is shown, prima facie at least, to have been violated by the injury. Outside of these cases, in which a positive obligation is cast upon the carrier to perform a special service, the presumption is that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances and if he has not the plaintiff must prove it. "Here no such proof was made, and the case stands as one of unavoidable accident, for the consequences of which the defendants are not responsible. The consequences of all such accidents must be borne by the sufferer as his misfortune. "This principle is recognized and affirmed in a great variety of cases,-in cases where fire originating in one man's building has extended to and destroyed the property of others; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives, or caused by horses running away, or by blasting rocks, and in numerous other cases which will readily occur to everyone. The rule deducible from them is, that the measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own. Hoffman vs. Tuolumne County Water Co., 10 Dal., 413; Wolf vs. St. Louis Indep. Water Co., 10 Cal., 541; Tood vs. Cochell, 17 Cal., 97. "And the principle is not changed whether the injury complained of follows directly or remotely from the act or conduct of the party. The direct or remote consequences of the act or conduct may determine the form of the action, whether it shall be case or trespass, where the forms of the common law are in use, but cannot alter the principle upon which liability is enforced or avoided. In Brown vs. Kendall, 6 Cush., 295, which was before the Supreme Court of Massachusetts, the action was in trespass for an assault and battery. The defendant was trying to part two dogs, fighting, and in raising his stick for that purpose accidentally struck the plaintiff in his 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.15 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 18 Hart vs. Washington Park Club, 157 Ill., 9, 45 Am. St. Rep., 298; Duvall vs. Baltimore, etc. R. Co., 73 Md., 516; Currier vs. Boston Music Hall Assoc., 135 Mass., 414. 16 Fogarty vs. Finly, 10 Cal., 239; 70 Am. Dec., 714; Smith vs. Clarke Hardware Co., 100 Ga., 163; Phillips vs. Edsall, 127 Ill., 535. to carry a passenger on Sunday, because the law implies no obligation to carry anyone on that day.1 (2) The specific duty, a violation of which is negligence in law, may also be created by statute or ordinance. 18 (3) The relation out of which the duty arises by implication of the law, may be created by contract." 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.22 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 49 Minn., 331; Coughty vs. Globe Woolen Co., 56 N. Y., 124. 20 Collett vs. London, etc., R. Co., 16 Q. B., 984, 71 E. C. L., 984. 21 Lake Erie, etc., R. Co. vs. Acres, 22 Hayes vs. Philadelphia, etc., |