CHAPTER II STANDARD OF CARE IN GENERAL § 13. Necessity of an External Standard. We have seen that negligence derives its importance as a ground of legal responsibility from the fact that it is a species of moral fault or culpability. We have also seen that negligence is a negative term, indicating a failure to exercise care. Now it is plain that we cannot justly blame a man for failing to exercise more care than he is personally capable of exercising. Men differ greatly from each other in wisdom, knowledge, and experience. From this difference necessarily results a corresponding difference in their capacity for acting with care. Were the law equipped with perfect agencies for testing the capacity of an individual it would perhaps hold every man liable only for that degree of care which he is personally capable of exercising; such a standard would be quite consistent with the modern notion of culpability as a basis of responsibility in tort. But, just as practical difficulties in the way of judging personal capacity lead men to praise or blame each other in non-legal relations by applying external standards of conduct, similar difficulties, accentuated by procedural limitations, compel the law to adopt similar standards. Thus, in a leading case,1 it was held that the trial court did not err in instructing the jury that the defendant was bound to exercise the caution which a man of ordinary prudence would have exercised under the circumstances instead of instructing them that his liability depended upon whether he had acted "bona fide to the best of his judgment". The court contended that the personal standard would have been uncertain and impracticable, whereas the external standard adopted, the conduct 1 Vaughan v. Menlove, 3 Bingham's New Cases 468, of the man of ordinary prudence, had proved satisfactory in practice; thus basing its decision upon considerations of practical necessity rather than those of theoretical justice. § 14. Care Required of Normal Adults-Ordinary Care Defined. With reference to mentally competent adults it may be said generally that the law measures the duty of care not by individual capacity but by wholly external standards. The standard usually adopted is known as "ordinary care." Ordinary care has been defined as "the care that a person of ordinary prudence would exercise under the same circumstances."'2 It is important to note that this definition contains two essential elements. No definition of ordinary care can be complete without a reference to the imaginary "person of ordinary prudence"; hence it was held error to instruct a jury that the defendant was bound to use such care as an "ordinary man" would use under like circumstances, the court considering that a man might upon the sum of his various qualities be fairly deemed an ordinary man although lacking in the specific quality of ordinary prudence. So too a charge was held incorrect and misleading which defined ordinary care as "just such care as one of the jury similarly situated" might have used, for the obvious reason that it did not appear that every member of the jury was a man of ordinary prudence.1 The second element is equally important. There must be a reference to the particular circumstances; hence, an instruction which adopted as a standard "such care as persons of ordinary care ordinarily use" was held erroneous.5 Said the court: 3 "Ordinary care is the care ordinarily exercised by the great mass of mankind, or its type, the ordinarily prudent person, under the same or similar circumstances and the omission of the last qualification, 'under the same or similar circumstances' or 'under like circumstances' is error." 2 St. Louis etc. R. R. Co. v. Finley, 79 Tex. 85. 5 Yerkes v. No. Pac. R. R. Co., 112 Wis. 184, § 15. Care Required of Insane Persons. While the practical necessity of applying the external standard of the care that would be exercised by a man of ordinary prudence under like circumstances may be sufficiently apparent when the conduct of a normal adult is in question, it is obvious that different considerations will arise when the conduct of an insane person is involved. In the long run and in the great majority of cases, substantial justice will be done by exacting of all men of sound mind the care which a person of ordinary prudence similarly situated would exercise, for the simple reason that the great majority of sane men are of ordinary prudence; but there is inherent injustice in exacting of men of unsound mind the same standard of care, for the obvious reason that they constitute a class of persons uniformly without ordinary prudence. However, as regards these unfortunates, it must be confessed that the law of torts is in a backward state. Just as the growth of the notion that one ought not to be liable in tort, whose conduct was free from blame, resulted in exempting all persons from liability for the purely accidental consequences of their voluntary acts, so a recognition of the same principle would logically result in freeing insane persons from liability for the consequences of their intentional acts as well as of those acts which would be regarded as negligent if done by mentally competent persons. But the law has not yet succeeded in taking such an advanced stand. Just as it insists on treating insane persons as responsible for their intentional acts, so it appears to exact of them the same care which it exacts of others. With respect to them it appears to adopt the old view that where one of two innocent persons must bear a loss, he must bear it, whose act caused it. Thus, where an action was brought against the master of a vessel for negligently causing its loss and the defendant relied upon insanity as a defense, it was held error to instruct the jury that, if the defendant were insane, he was not responsible for her loss through any conduct on his part which in a sane person would have constituted such negligence as would have 6 imposed responsibility. With respect to the standard of care applicable, Earl, J., said, in delivering the opinion of the court: "I quite agree, and no one in this case has contended for more, that the defendant was bound, in the navigation and use of the vessel, to bestow only ordinary care, to wit: such care as a reasonably careful and prudent owner would ordinarily give to his own vessel...... The particular man whose duty of care is to be measured does not furnish the standard. He may fall below it in capacity and prudence, yet the law takes no account of that, but requires that he should come up to the standard and his duty is measured thereby." § 16. Care Required of Children. Children are universally held liable for intentional torts. They are likewise held liable for the consequences of their negligent acts, when it has once been determined that they have been guilty of negligence. But when are they guilty of negligence? Must a child exercise the same care as an adult or does the law take note of the fact that he is a child and modify its demands accordingly? There seems no more reason for leniency in the case of sane children than in the case of insane adults. It has sometimes been affirmed that, like insane adults, all children are held to the same degree of care as persons of sound mind and full age. But this is open to question. The cases in which it has been necessary to determine the standard of care due from children are generally cases in which that question arose upon the defense of contributory negligence; but inasmuch as the same standard of care is ordinarily adopted whether the negligence in question be that of the plaintiff or of the defendant, we may perhaps treat these cases as authoritative upon the general question of the standard of care required of children. These cases have usually regarded the age of the child as having an important bearing upon 6 Williams v. Hays, 143 N. Y. 442. 7 Shearman & Redfield on Negligence (5th ed.) § 121. 8 Austin etc. R. R. Co. v. Beatty, 73 Tex. 593. the care that might be required of it. Thus, in some cases, the courts have not hesitated to declare that a child so young as three or four years of age is incapable of exercising care. Other courts, while conceding that a child of such tender years ought not to be regarded as responsible, have said that it is impossible to establish a fixed period when a child becomes sui juris (of his own right) and that, in case of doubt in a particular case, the question ought to be left to the jury.10 But suppose it be admitted that a child is capable of exercising some care; must he exercise the same care that an adult of ordinary prudence would exercise under like circumstances? Or, while applying the external standard of ordinary prudence under the circumstances, shall we regard the standard as meaning, with respect to a child, the prudence of an ordinarily prudent child of the same age? Or shall we reject the external standard altogether and measure the particular child's duty by his individual capacity? We may reject the view that his duty should be measured by the same standard as that of an adult on the ground that it is obviously unjust. As to whether the standard should be the conduct of children of equal age of ordinary prudence or a purely personal one, the decisions are not in harmony. If the only evidence of capacity is the age of the child the only practicable standard would seem to be an external one, viz, the conduct of a child of that age of ordinary prudence when similarly situated.11 On the other hand, if there be evidence as to the particular child's capacity, it would seem that such evidence ought to be laid before the jury to enable them to determine whether or not he has been culpably careless. A recent Illinois case,12 is in point. The plaintiff was a newsboy, between eleven and twelve years old, and had sold papers in the business district of Chicago from the age of nine. He had been in the habit of riding on 9 Mangam v. Brooklyn R. R. Co., 38 N. Y. 455. 10 Stone v. Dry Dock Co., 115 N. Y. 104. 11 Idem, footnote 10. 12 Ill. Iron & Metal Co. v. Weber, 196 Ill. 526. |