acter and degree are determined by the law of torts, or of contracts, accordingly as it gives rise to actions ex delicto or actions ex contractu.

There are then two divisions of negligence, which may be denominated tortious and contractual. The distinction between them springs from the different sources of the rights affected, and it affords a reason why the same rules of law are not applicable to both. Tortious negligence is a failure to perform a duty which is positive with reference to one's own conduct and property, and negative with reference to the property and lawful conduct of others. This duty is imposed by law irrerespective of personal choice, and is eludible under the terms and stipulations of no contract. Contractual negligence, on the other hand, is the breach of an obligation created wholly by private agreement. By this agreement the obligor super-adds to his negative general duty a positive duty with reference to the person or possessions of the obligee. In brief, tortious negligence is a failure to use one's own property with that care and circumspection required by law; while contractual negligence is a failure to bestow on another person, or his property, that degree of care and foresight for which he has contracted.

This

Co-existent with the duty enjoined by law, is the measure of diligence, skill or circumspection required. The weight of authority decides it to be that diligence and foresight which an ordinarily prudent man would exercise under the same circumstances.4 standard of care is just, accurate and easily obtained; for it is itself a product of which the circumstances of the case under investigation are a chief factor. The jury consider all the facts of the accident, or the transaction, the character of the parties, the nature of their business, the lawfulness of their conduct, and then find whether or not the defendant acted as an ordinarily prudent man would have acted, not in his family affairs, or on

3 Cleveland R. Co. v. Curran, 19 Ohio St. 1; Farnham v. Railroad Co., 55 Pa. St. 62; M. & O. R. Co. v. Weiner, 49 Miss. 725; Gunter v. Grainteville Mf'g Co., 15 S. C. 443; Rose v. Des Moines Valley R. Co., 39 Ia. 246; Read v. St. Louis, etc. R. Co., 60 Mo. 199.

4 Railroad Co. v. Jones, 95 U. S. 441; Sleeper v. Sandown, 52 N. H. 244: Powers v. Council Bluffs, 50 Iowa, 197; Brown v. Kendall, 6 Cush. 296; Cotton Press Co. v. Bradley, 52 Tex. 587; Brown v. New Albany R. Co., 58 Me. 384; Turpike Co. v. Railroad Co, 54 Pa. St. 345; Hare & Wallace's Notes to Coggs v. Bernard, 1 Smith's Lead. Cases, 424.

another occasion,-but in the same situation in which the defendant himself was placed. Such a degree of care is a compliance with all the demands of the law; a want of it is negligence, for which the defendant, or the plaintiff in a case of contributory negligence, is liable. If the negligence be less than this, it is not actionable, and is therefore no negligence in the eye of the law; if it be greater than this, it is still actionable only, and no new liability is created by describing it with an epithet. It is true that punitive damages are allowable in many actions for negligence; but this is so because of the additional facts of fraud, recklessness or utter indifference to suffering and death.5 When these facts enter into the offense, it is no longer one of negligence proper, and is, consequently, not within the domain of this essay.

The law of bailments, which governs in all cases of contractual negligence, proceeds on the principle of an independent standard for each of the infinite number of degrees of skill and care for which the parties may contract. But to provide a standard for each degree so flxed upon, is both impractical and hopeless of accomplishment. In tortious negligence no two sets of facts are precisely alike, and no two sets are certain to contain a fact common to both. Hence, classification is impossible, and a standard applicable to every case must be sought. The cases of contractual negligence, however, are easily grouped

1.

into classes which have a common fact and to which the same standard of care may be applied. These facts are three in number: 1. Sole benefit of bailor; 2. Sole benefit of bailee; 3. Mutual benefit of both. The corresponding standards of diligence are: That diligence exercised by a very inattentive man of common sense in the management of his own general affairs; 2. That care and foresight manifested by a very cautious and unusually prudent man in his own business matters; 3. That diligence and circumspection displayed by an ordinarily prudent man, capable of caring for a family, in the management of his own general affairs.6 Omis

5 M. & St. P. R. Co. v. Arms, 91 U. S. 489; Edelmann v. St. Louis Transp. Co., 3 Mo. App. 503; Childs v. Drake, 2 Met. (Ky.) 146; Chicago R. Co. v. Scurr, 59 Miss. 456; Pennsylvania R. Co. v. Brooks, 57 Pa. St. 339.

6 Jones' Essay on Bailments, 23; Story on Bailments, secs. 3 and 23,

sions of these degrees of care are known to every lawyer as gross, slight and ordinary negligence. The prominent features of this doctrine are, that there are three standards instead of one; that these standards are arbitrary and independent of the facts of the cases to which they are applied; and that the proper standard for each case is determined by the reward given for care, and not by a rule of law. Why these standards are dissimilar to that of the law of torts, is explained by their civil law origin. The entire law of negligence could doubtless be freed from complexity by abrogating these civil law degrees and standards, and making reward for diligence a fact for the jury to consider. But the above is the bailment law of negligence, as expounded by Sir Wm. Jones and Mr. Justice Story, and the reasons advanced are conceived to be the true basis of the doctrine and the grounds of its adoption. The question now is, are these degrees of negligence, recognized in our present American law?

With the aid of the above classification and principles, derived from numerous decisions and from the nature of negligence itself, it is now purposed to examine the law of pleading, the language of the statutes, the reports of the leading States, and several American cases often cited as authority for the abrogation of all the degrees. Before proceeding, however, it is desirable to point out the double use of the words, slight, gross and ordinary. "They are words of description and not of definition," is the language of Lord Cranworth, and of many American judges. This is both true and untrue. They are clearly words of description in the law of torts; for they may in every case be omitted, or be substituted by such adjectives as trifling, cupable or common, without affecting the rights and liabilities of the parties. In the law of bailments, however, they are not merely descriptive,they express an essential part of the cause of action, and indicate the point on which the case will turn. Their importation into the

8

7 Story on Bailments, secs. 17-23; Jones' Essay on Bailments, 23. Both of these writers state this as the civil law, but they are disputed by Donellus, Le Brun and Thomasius. See 8 Am. Law Rev. 649; also, Story on Agency, sec. 184, note by Greene, Editor of the ninth edition.

8 See Siegrist v. Arnot, 10 Mo. App. 207, where Thompson, J., speaks of gross as often used in the sense of culpable.

latter branch of law with the technical meaning attached to them in the former was wholly unauthorized and is the source of much confusion. Sir Wm. Jones used them as substantives, not as mere adjectives. He wrote exclusively of bailments, and employed these words in no instance of negligence unconnected with an express contract; nor does he anywhere intimate that they ever had, either in the civil or the common law, the same signification or technical meaning, in actions for the violation of a general duty, which he gives them in the law of bailments.

Negligence is an ultimate fact, and must be so pleaded both at common law and under the Codes. A petition is not demurrable for a failure to cover any particular degree, even where evidence of gross negligence is held necessary for a recovery. 10 The simple allegation of negligence is sustained by proof of a want of due diligence, and the liability of the defendant is thereby established. It seems very clear that no degrees of negligence are recognized by the law of pleading, whether the action be in tort or in contract. Nevertheless, this can not be adduced as a conclusve argument against the degrees of negligence in bailments; for the rules of pleading were firmly settled long prior to Coggs v. Bernard, or to Sir Wm. Jones' celebrated essay.

The statutory law of negligence is meager but uniform in spirit. In some statutes the words neglect and negligence are unaccompanied by any modifying terms or restrictive expressions;11 in others they are qualified by the words wilful, gross or culpable, but never by slight or ordinary.12 These words are undefined by the statutes, or by the cases decided under the statutes. The civil law de

9 Bliss on Code Pleading, sec. 211. Chitty on pleading contains no precedents for pleading negligence as gross, slight or ordinary; nor does the learned author state that it ought in any case to be so pleaded. 10 Nolton v. West. R. Co., 15 N. Y. 450, at end of opinion.

11 Michigan Statutes, 1871, ch. 75, secs. 45 and 54; Michigan Statutes, 1871, ch. 212, sec. 1; Michigan Statutes, 1873, art. 5, sec. 7; Missouri Revised Statutes, secs. 887, 2121, 2124; Texas Statutes, 1869, art. 2236.

12 New York Statutes, Part IV., ch. 1, tit. 2, secs. 6 and 18; Missouri Revised Statutes, secs. 1238 and 1264; Tennessee Statutes, sec. 4637; Texas Statutes, 1869, art. 15; Kansas Statutes, sec. 1355. The Iowa Statutes are similar to those of Michigan; Wisconsin Statutes to those of Missouri; and Minnesota Statutes to those of New York.

grees are in no instance recognized, unless the use of the word gross be evidence of such recognition. But gross appears to have been adopted or rejected according to the taste of the legislators, and not in conformity with any legal principle. Gross and culpable are used interchangeably, and in every case they might be omitted without impairing the sense or force of the statutes. In all the Codes accessible to the writer, the use of these two words is confined to enactments of which the object is the protection of human life; and, as has been well observed, where human life is involved, any degree of negligence may be called gross or culpable. The statutes, with one exception, 13 establish no standards of diligence. And furthermore, there are no States which provide different penalties for various degrees of negligence, as would be necessary if they regarded such degrees as distinct causes of action. The only conclusion warranted by the statutes is, that there are no specified degrees of negligence in our American law. This conclusion, however, does not affect cases of contractual negligence; for the requirements of a statute are a duty and not a matter of private agreement.

The great well-spring of the law of negligence is the decisions of our Supreme Courts. The cases may be thus classified: (1), Those purely ex delicto; (2), those purely ex contractu; (3), those in which an action in either form is maintainable. The first class is represented by Stout v. S. C. & P. R. Co.14 The company left its turn-table unlocked and and unattended, and a small boy received a severe injury while playing thereon. Dillon, J., affirmed the rulings on which a verdict was rendered for the plaintiff, on the ground that the defendant had not exercised that care which an ordinarily prudent person would have exercised in the same situation. And in another case, where a railroad company was sued for killing a cow on a public crossing, the Supreme Court of Missouri, speaking through Wagner, J., on the appeal, said: "The word gross has been frequently used by judges in discussing this question, but I deem it wholly unnecessary. The question is actual negligence, and if the jury found that it is sufficient."15 The law of

*

13 Texas Statutes (1869), art. 2236, concerning homicide.

14 2 Dillon (C. C.), 294.

15 McPheeters v. Hannibal, etc. R. Co., 45 Mo. 22.

negligence in actions ex delicto, as declared by these eminent judges, is the law of the land; and we are spared any further citation of authorities for the doctrine by the fact that prolonged search has not disclosed a case which turns on the civil law degrees and standards of care. And in truth, no such case could arise; for the law of torts knows nothing about compensation for exercising due care, and we have seen in the law of bailments that the question of reward or compensation determines whether negligence be slight, gross or ordinary.

The second class includes all bailments, except those to common carriers and inn-keepers, who, in accordance with public policy, are held responsible for all goods which are entrusted to them and are not destroyed by the act of God, or by a public enemy. It is confidently asserted, after a careful examination of the reports, that the law of bailments, as laid down by Mr. Justice Story, is recognized by the courts of this country, and that bailment cases are decided according to the principles of the civil law degrees of negligence and standards of care. Even those courts which repudiate the degrees in their decisions for or against the validity of contracts which protect carriers from liability for their own negligence, are careful to restrict their repudiation of the degrees to the particular state of facts at bar, as the following language proves: "We do not mean to say

that in no case does the distinction in the degrees of negligence exist."'16 In Express Co. v. Kountze Brothers, 17 an action for gold seized by a public enemy, and decided by Justice Davis, who repudiates the question of degrees in tortious negligence, it was held that gross negligence need not be proved, the company being a bailee for hire, and therefore bound to exercise the care of a prudent man-not under the same circumstances, but in his own general affairs. Allen, J., in a dissenting opinion in a case of tortious negligence, rejects the idea of "rights being based on the shadowy degrees;"18 nevertheless, he approves the civil law degrees of negligence in a subsequent case of bailment and so decides. 19 In support of this view, a well con16 Michigan Southern, etc. R. Co. v. Heaton, 37 Ind. 448; also, 47 Ind. 471.

17 8 Wall. 342.

18 Smith v. New York Cent. R. Co., 24 N. Y. 222.

19 First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278.

sidered case from each of the leading States of the Union is cited in the note below. 20

22

The third class embraces all cases in which the injuria combines a violation of a duty and a breach of a contract. It is largely composed of actions brought by passengers against common carriers. Public policy here plays an important part in creating an exception to the rule of ordinary care and in applying the law of tortious negligence in an action of contract. It exacts the utmost diligence and the greatest foresight in the transportation of passengers; 21 and the courts enforce its exactions irrespective of the form of action, for the duty transcends the obligation of the contract evidenced by the passenger's ticket. Where the bailment is human life there are no degrees of negligence and the law of bailments does not apply.23 This principle is finely illustrated in Railroad Company v. Lockwood.24 The plaintiff was injured while travelling on a pass which stipulated that the company should be responsible for no negligence of themselves or their servants. The Supreme Court of the United States, held that the stipulations were invalid; that the company owed the plaintiff a duty independent of the contract, and was liable for neglecting to bestow the care and skill which the situation deminded. And some States extend the rule to carriers of goods.25 So, in actions of malpractice, physicians and surgeons are not permitted to set up a contract against the duty imposed by law. They must exercise at all events the ordinary skill of their profession.26

20 Wiser v. Chesley, 53 Mo. 547; Remington v. Sheldon, 10 R. I. 218; Nat. Bank of Carlisle v. Graham, 79 Pa. St. 106; Lobenstein v. Pritchett, 8 Kan. 213; Barrows v. Cushaway, 37 Mich. 482; Brown v. Grand Trunk R. Co., 54 N. H. 535; Whitney v. Lee, 8 Met. (Mass.) 91; Hagebush v. Ragland, 78 Ill. 40; Fulton v. Alexander, 21 Tex. 148; Knowles v. Atlantic, etc. R. Co., 38 Me. 55; McKay v. Hamblin, 40 Miss. 472; Maury v. Coyle, 31 Md. 235; Scott & Co. v. Crews, 2 Richardson (S. C.), N. S. 522, and New York cases cited supra.

21 Penn. Co. v. Roy, 102 U. S. 451; Taylor v. G. T. R. Co., 48 N. H. 305; Lockhart v. Lichtentahler, 46 Pa. St. 151; Shieley v. Billings, 8 Bush. 151; Caldwell v. Steamboat Co., 47 N. Y. 282.

22 Eaton v. Lowell R. Co., 11 Allen 500.

23 Seigrest v. Arnot, 10 Mo. App. 207; Jacobus v. St. P. & C. R. Co., 20 Minn. 125.

24 17 Wall. 382.

25 Levering v. Union etc. R. Co., 42 Mo. 88; Arndorf v. Adam's Ex. Co., 3 Bush. 194; School Dist. v. Hartford etc. R. Co., 102 Mass. 552.

26 Hitchcock v. Burgett, 38 Mich. 501; Hathorn v. Richmond, 48 Vt. 557; Small v. Howard, 128 Mass. 181.

Indeed, it is indisputable that no degrees of negligence are recognized in the decisions of the third class, the law of tortious negligence prevailing.

Among the leading American cases cited as authorities for the abrogation of the three degrees is Steamboat New World v. King, decided in 1853.27 The plaintiff, a gratuitous passenger, was struck by a flue, which was blown from the boiler while the boat was racing. Curtis, J., in confuting the argument that the boat was liable for gross negligence only, pronounced the degrees of negligence impracticable and undistinguishable.. But however sound his views may be, his remarks concerning the degrees were unnecessary in deciding the real point at issue; for the court held that in such a case any want of skill would be actionable negligence. In Wells v. N. Y. C. R. Co., Sutherland, associate judge, makes an unanswerable argument. in a dissenting opinion, against the civil law degrees, and in this he concurs with the opinion, of the court, which declares them impractical and illusory.28 But the point really decided by this case, and also by the two succeeding cases in the same volume, is that the word negligence on a railroad pass, tomprehends all the degrees. Granting this to be true, it would be idle therefore to conclude that there are no degrees. The civil law doctrine of negligence is peculiar to the law of bailments, and a decision in an action on a bailment, repudiating the three degrees, would be an authority in point; but no such case has been found. It must be admitted that all the cases which reject the three degrees are those of tortious negligence, or those like the New York cases just commented on; and that the weight of adverse criticism is found in dicta, or in dissenting opinions.

An omission to examine comparative negligence as an argument for the degrees would be inexcusable, did not the emphatic rejection of the doctrine by the ablest courts of the country destroy its force as such an argument. The confusion and uncertainty into which the courts and bar of States recognizing the doctrine of comparative negligence have fallen, exemplifies the futility of attempting to determine rights and liabilities in torts by the rules and technical terms of bailments. A late

27 16 Howard 474. 28 24 N. Y. 181.

decision sustains our statement, and proves in a negative way the wisdom of distinguishing between tortious and contractual negligence.29 The court finds it necessary to hold that gross negligence cannot be compared, and that the words slight, gross, and ordinary have the meaning given them by Sir Wm. Jones. Dickey, associate judge, dissents in an opinion both humorous and satirical, and is quite as logical as the majority of the court.

II. Concerning Privity in Negligence.There are no distinct kinds of negligence, it being, like truth, indivisible into genera or species. The terms comparative and contributory negligence designate the delinquent parties rather than kinds of negligence in>herently different, and they may therefore be dismissed from further consideration; for the law and principles of negligence are alike applicable to the omissions of defendant or plaintiff. Imputed negligence, however, is a topic pertaining to the remissness of third persons and requiring investigation so far as it involves a principle hitherto unnoticed, viz: Privity in Negligence.

Imputed negligence is that which is chargeable to the plaintiff on account of his relation to the person guilty of the wart of care set up as a defense. This relation must be legal and binding; for it is well settled that the negligence of a stranger, or a mere companion, is no defense to the plaintiff's action.30 It may be one established by law, as that of parent and child; or one raised by contract, as that of carrier and passenger. This distributes our subject under two heads, viz: 1. The relation, one of status; 2. The relation, One of contract.

And first, when the relation is one of status. The status under which the most numerous class of cases arises, is that of parent and child. The doctrine of imputing the negligence of parents to their children was first promulgated in Hartfield v. Roper in 1839.31 A child two years old was sitting in a public road in the country, near the foot of a small hill. The defendant was in a sleigh descending the declivity at ordinary speed. Before he saw the child his horses ran upon and in

29 C. B. & Q. R. Co. v. Johnson, 103 Ill. 512.

80 Lake v. Milliken, 62 Me. 240; Ricker v. Freeman, 50 N. H. 420; Newman v. Fowler, 37 N. J. L. 89; 3. Sheridan v. Brooklyn City etc. R. Co., 36 N. Y. 39. 21 Wend. 615.

jured it severely. This state of facts prompts the following questions, the answers to which constitute the law of this subject:

First. Was the defendant negligent? It is clear that if the defendant acted as an ordinarily prudent man would have acted under the same circumstances, he fulfilled his duty. If he fufilled his duty, it is equally clear that there was no cause of action and that the parents' want of care was an immaterial part of the case. Therefore all those cases in which the defendant was not proved careless, are not and can not be, authorities for the doctrine of imputed negligence. The apparent needlessness of these remarks vanishes at the announcement that the origin of the doctrine is a dictum, and that Hartfield v. Roper is simply a decision that an exercise of due care is a good defense to an action by a helpless child for injuries to itself. Cowan, J., said: "It seems to me that the defendants exercised all the care which, in the nature of the case, the law required. If so, it is a mere case of unavoidable accident, for which they (defendants) are not liable. My difficulty

in the case at bar is to find the least color for imputing gross negligence, or any degree of negligence, to the defendants." There are other cases, too, cited both for and against putative negligence which resemble Hartfield v. Roper, in that the defendant's due diligence dispensed with the necessity of a defense of contributory negligence on the part of either parents or child. 32 And a distinction ought to be taken between those cases in which the defendant knew from the first that his conduct would affect the safety of an infant, and those in which he did not know and had no reason to suppose that a child was near; for adults are bound to exercise greater care when in the presence of children or where children are liable to be.33

Second. Was the child itself negligent? The degree of care and foresight children are expected to use is determined by their age, strength, and qualities of mind. 34 Children

82 A. & N. R. Co. v. Flinn, 24 Kan. 627; Brown v. N. A. R. Co., 58 Me. 384; Mangam v. Brooklyn R. Co., 38 N. Y. 455; Philadelphia etc. R. Co. v. Long, 75 Pa. St. 257; Chicago v. Hesing, 83 Ill. 204.

33 Sheridan v. Brooklyn R. Co., 36 N. Y. 89; Walters v. C. & R. I. R. Co., 41 Iowa 71.

34 This suggests that there are no civil law degrees in cases of negligence of children, for the civil law provides no standards of care for immature, or infirm persons.