CHAPTER XVIII NEGLIGENCE Statement of the duty. A, seeing or knowing, or being in a situation to see or know, that failing to exercise ordinary care, skill, or diligence towards B, in a particular place or situation, will be apt to do harm to B, owes to B the duty not to be guilty of such failure, to the damage of B. The foregoing is a statement of duty, not for negligence universally, but for its more common or typical form, in which the relation of the parties is in no way modified by special facts, such as contract, office, or possession of land. It would be impracticable to go further without making the statement prolix. Like fraud and malice, negligence is only an element of tort, not itself a tort; it is of a wrongful nature, but not alone a wrong. Unlike fraud and malice, negligence is not represented by a number of torts having names of their own; its origin in the law is too modern for that. The fundamental distinction between the wrongs of Part I. and Part II. on the one hand, and those of Negligence on the other, has been stated in treating of General Doctrine. The consequences complained of in the first two divisions are immediate, or begin immediately, upon the wrongful act or omission; the consequences complained of in negligence do not always follow at once upon the wrongful act or omission, and they are never intended1. 1 Ante, pp. 13, 14. Of course a man might intend the harmful consequences of his negligence; but the case would then belong to the category of intended 20 B. T. § 1. WHAT MUST BE PROVED, ETC. A man may sustain damage by reason of the negligence of another, and yet have no right of action for the same. Elements of liability. Another element is necessary; namely, that the defendant owed a duty to the plaintiff not to be negligent1. The rule is not peculiar to negligence2, but it needs emphasis here. Negligence, breach of duty to the plaintiff, and damage, are then the essential elements of the right of action. In many cases the duty will be obvious on the general facts, and hence will not call for special consideration; in other cases it will not be obvious that there was a duty, or what the nature of the duty was. Such cases will call for examination of the question. The result is, that it will be necessary to consider, first, the meaning of 'negligence,' as applicable to all cases in general, and, secondly, assuming negligence, whether the negligence (and damage) amounted to a breach of duty to the plaintiff. Damage, that is to say special damage, is a constant and unvarying factor throughout the chapter. § 2. LEGAL CONCEPTION OF NEGLIGENCE IN GENERAL Popular and Negligence in the law is a technical term, and a complex conception. Conduct is considered negligent in law which might not be considered negligent in the popular acceptlegal meaning ation of the term. Indeed the popular understandof negligence: rashness and ing is too apt to make its way, in unguarded or mistaken language, into the law books,—some special phase of the subject in its technical sense being spoken of perhaps as something other than negligence. wantonness. The significance of this will be seen when it is said that wrongs. And to make a case for that category, where the consequence was not, at least in part, immediate, it would be necessary to prove that the result was intended. Hence the immediateness or not of the result is material; all the difference, on the criminal side, between manslaughter and murder may be involved. 1 Membury v. Great Western Ry. Co., 14 App. Cas. 179, 190. 2 Ante, p. 24. negligence, in the eye of the law, embraces not merely want of care, its more familiar form, and thoughtlessness, but rashness and wantonness, in other words, danger known but disregarded or not heeded1. And well enough; for what are rashness and wantonness but failure, in presence of danger, to respond to the prompting of judgment or conscience, which, in the one case (rashness), would not tolerate over-confidence, and, in the other (wantonness), would not excuse want of ordinary regard for another's rights?? Plainly that would be negligence. But rashness and wantonness stand upon a special footing in certain cases, sometimes creating liability, as will later appear, when negligence in the more common form would not. That fact, no doubt, has caused judges and writers on law, now and then, too readily to consider rashness as not negligence at all. Legally speaking, then, negligence in common form, as a tort, imports misconduct causing unintended harm3, the misconduct consisting in a failure to respond to judgment or conscience according to ordinary standards of conduct. Manifestation Still, it should be distinctly observed that the law acts, or refuses to act, in accordance with the manifestation of conduct; in no case does it inquire into the defendant's attitude of mind to determine whether he was guilty of negligence. In this legal conception of it, as manifestation, negligence may consist in acts as well as in omissions, as follows from what has already been said. of conduct the test. Further, negligence may relate either to things seen or 1 See Claridge v. So. Staffordshire Tramway Co., 1892, 1 Q. B. 422, fast driving; Maynard v. Boston R. Co., 115 Mass. 457. Rashness, recklessness, and wantonness are words applied indifferently, in many cases, to danger known but not heeded; but rashness properly is over-confidence, and recklessness or wantonness, disregard of another's rights. See for instance Southern Ry. Co. v. Bush, 122 Alabama, 470; Louisville R. Co. v. Orr, 121 Alabama, 489; Louisville R. Co. v. Brown, id. 221; Abrahams v. Los Angeles Traction Co., 124 California, 411. All three approach, but still fall short of, intentional wrongdoing. They are however treated as evidence of malice and trespass as well as of negligence. See ante, pp. 21, 81, 168, 172. Rashness and recklessness are also evidence in deceit, on the allegation of fraud. See ante, p. 64. 2 If the function itself is so dulled as not to speak, it is a case of mental derangement, more or less, and may not be negligence. 3 See post, pp. 344, 345. 4 See e.g. Smith v. Baker, 1891, A. C. 325, 347, Lord Bramwell. 5 Ante, p. 14. |