Page images

other person suffers injury.' It is 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."

The basis of liability in negligence cases is the violation of some legal duty to exercise care. Although an admission of liability is evidence of the fact of negligence, it does not in itself create a liability apart from the facts. One who does an act involving the least possible danger to others is only required to use a slight degree of care in its performance, and that degree of caution constitutes what is called "slight care;” and the want of it “slight negligence.” It is that degree of diligence which a person of common sense, not a skilled workman or expert in any particular business or employment, would exercise in such employment; such care of himself or of his property, as one habitually careless would take. The absence of this degree of attention is called slight negligence.

b. Ordinary Negligence.


Where circumstances clearly demand precautionary measures, and injury arises from an omission of them, this is want of ordinary caution and skill.' Ordinary care is that degree of watchfulness which is exercised by ordinarily prudent persons under similar circumstances.' It is what, in the particular case involved, would be the conduct of a majority of men in like circumstances. It is such a degree of caution as will be in due proportion to the Diamond State Iron Works v. Giles (Pa.) 9Cent. Rep. 577; Pennsylvania

R. Co. v. Peters, 8 Cent. Rep. 405, 116 Pa. 206; Lehigh & W. B. Coal Co.

v. Lear (Pa.) 8 Cent. Rep. 107. ? Blythe v. Birmingham Waterworks Co. 11 Exch. 783. 3 Cusick v. Adams, 115 N. Y. 55. *Swift Electric Light Co. v. Grant (Mich.) March 4, 1892. Louisville & N. R. Co. v. McCoy, 81 Ky. 403; Mark v. Hudson River Bridge

Co. 4 Cent. Rep. 203, 103 N. Y. 28. McGrew v. Stone, 53 Pa. 436; Thomas v. Winchester, 6 N. Y. 397; Jackson

ville St. R. Co. v. Chappell, 21 Fla. 175. 'Needham v. Louisville & N. R. Co. 85 Ky. 423; Austin & N. R. Co. v. Beatty,

73 Tex. 592; Chicago & A. R. Co. v. Adler, 129 Ill. 335; Richmond & D. R. Co. v. Howard, 79 Ga. 44; Toledo & W. R. Co. v. Goddard, 25 Ind. 'Ernst v. Hudson River R. Co. 24 How. Pr. 97. * Gaynor v. Old Colony & N. R. Co. 100 Mass. 208; Bill v. Smith, 39 Conn.


injury or danger to be avoided.' The measure of ordinary care is such care as must, by common prudence, be usually exercised in positions of like exposure and danger." Ordinary negligence

' is the want of this degree of care.

c. Gross Negligence.

Where it is said that great care was demanded, it is intended to indicate that degree of practical attention which persons of the greatest prudence and skill usually exercise in similar cases. It answers to a degree of responsibility above that exacted from an an ordinarily prudent man, and below that exercised by an insurer. It is the exercise of the greatest uniform practical diligence and care, and what this is, in any given case, is tested by that which men of the greatest prudence exhibit under like circumstances In a particular business it is the skill and care usually exercised by an expert. ' Such care is required of carriers and others who employ dangerous agencies for their own profit.

So far as it is possible to define gross negligence it may be said to be such absence of care--when the consequences of such want of care would appear probable, if the slightest thought were given, but where it is not given—as would charge the person so negligent not necessarily with an intention to inflict the injury resulting from his negligence, but with the same responsibility as though he had actually intended it. Inasmuch as his entire want of care results to others in as much injury as though he had intended the harm and damage, it is just that he shall suffer the same pecuniary consequences as though guilty in intent. He is punished civilly, and those who suffer are reimbursed for the consequences of his entire want of care, when he should have anticipated the result thereof, but for his inexcusable thoughtless

210; Reynolds v. Burlington, 52 Vt. 300. 3 Houston & T. C. R. Co. v. Gorbett, 49 Tex. 573; Carroll v. Staten Island R.

Co. 58 N. Y. 126; Louisville City R. Co. v. Weams, 80 Ky. 420; Coddington v. Brooklyn C. R. Co. 2 Cent. Rep. 913, 102 N. Y. 66; Moreland v. Bos. ton & P. R. Corp. 1 New Eng. Rep. 909, 141 Mass. 31; The New World v. King, 57 U. S. 16 How. 469, 14 L. ed. 1019; Sharp v. Grey, 9 Bing. 457;

Caldwell v. New Jersey S. B. Co. 47 N. Y. 282. Higgins v. Derocy, 107 Mass. 494; Palmer v. Delaware & H. Canal Co. 120 N. Y. 170.


18.4. Contributory Negligence as Proximate

Cause. Although the carrier may be guilty of negligence, vet if the person injured has contributed proximately by his own act to bring the injury upon himself, he cannot recover. The rule which prevails at common law, is that one cannot recover for an injury caused by his own negligence, or where his own negligence contributed to the result,-even though the defendant was in fault.

It becomes important in considering the law of negligence, as applied to carriers, to ascertain what constitutes contributory neg. ligence in such legal sense as the definition is applied in common law courts and also within admiralty jurisdiction, for if the transportation be within admiralty jurisdiction the rule which prevails at common law, that one cannot recover for an injury caused by his own negligence or where his own negligence contributed to the result, even though the defendant was in fault,' loes not, in its full force apply.

At common law one who suffers an injury for want of that ordinary care which a prudent man would have exercised under the circumstances, may be said to have caused the injury by his contributory negligence. A street railway company is not liable for a personal injury sustained by a passenger while attempting to get off a car at a street crossing while it was in motion, in violation of the company's rules and without anything having been said or done by the company's employés to induce her to get off.'

A rule of a railroad company requiring approaching trains to Allen v. Maine Cent. R. Co. 82 Me. 111; Jochem v. Robinson, 1 L. R. A. 178,

72 Wis. 199; Richmond & D. R. Co. v. Picklexeimer, 85 Va 798; Louistille & N. R. Co. v. Hall, 91 Ala. 112; Trousclair v. Pacific Coast ss. Co, 80 Cal. 521; Phillips v. Ritchie County Ct. 31 W. Va. 477; Alkyn v. Wabash R. Co. 41 Fed. Rep. 193; Ryne v. Wilmington & N. R. Co. (Del.) May 31, 1888; Gerily v. Haley, 29 W. Va. 98 ; Schoenfeld v. Milwaukee City R. Co. 74 Wis. 433; Moore v. Central R. Co. 24 N. J. L. 268; Pennsyl. vania R. Co. v. Mattheurs, 36 N. J. L. 531; Delaware, L. & W. R. Co. v. Toffey, 38 N. J. L. 525; East Tennessee, V. & G. R. Co. v. Hull, 88

Tenn. 33. * Calderwood v. North Birmingham S. R. Co. (Ala.) May 4, 1892.


stop until a train standing at a station has cleared the station does not absolve a passenger, even though he knew of the rule and

a relied upon its observance by the company's employés, from the duty of exercising ordinary care for his own protection. The negligence of one who, after boarding a train, returns to the station without notifying the trainmen, and then, as the train is starting, runs to catch it without looking or heeding the warnings of persons on the platform, and is killed while crossing a track in front of an approaching train, will preclude a recovery of damages by his widow.'

An intending passenger who leaves a position of safety and takes one of manifest danger between two tracks, upon one of which his train is expected, and stands so near an approaching train that he is struck by a car, is guilty of negligence which will prevent his recovery for injuries thereby sustained.

The fact that a passenger in a horse car was intoxicated when he received an injury, although not alone sufficient to prevent his maintaining an action, will prevent his recovery if his intoxication contributed to the injury in any degree."

A railroad company is not liable for the death of a passenger who, on arriving at his home station in a somewhat intoxicated condition at 12 o'clock at night, got off the car on the wrong side, where there was no platform, and fell off the bridge on which the car stopped, and was killed. Perhaps the rule may be stated thus: One who suffers an injury, to which the mere negligent act of another has contributed, cannot recover therefor, if his own want of such care as a prudent man would, under the circumstances have exercised, or the want of the exercise of such care on the part of some one for whose negligence he is responsible, has proximately contributed also to the result. But if another person, aware of his negligence, is guilty of such conduct contributing to the injury, as implies an indifference to the consequences to him, he may recover.

The test of contributory negligence or want of due care is not found in the failure to exercise the best judgment or to use the

Chaffee v. Old Colony R. Co. (R. I.) Feb. 27, 1892. * McGeehan v. Lehigh Valley R. Co. 1 Pa. Adv. Rep. 704, 30 W. N. C. 140. * Holland v. West End St. R. Co. (Mass.) Jan. 9, 1892. *Pastoris v. Baltimore & 0. R. Co. (Pa.) May 23, 1892.,

wisest precaution, but allowance may be made for the influences ordinarily governing human action, as what would under some circumstances be want of reasonable care may not be such under others.

The contributory negligence which prevents recovery for an injury must be such as co-operates in causing the injury, and without which the injury could not have happened.' But it need not be the sole cause of the injury; it is sufficient, if it be one of two or more concurring efficient causes, to bar recovery. A passenger who is carried by his station without knowledge of the employés on the train, and is injured while attempting, without their knowledge, to alight at the next station on the opposite side of the train from the station, cannot recover from the railroad company if struck by a passing train.

It is gross negligence in a passenger on a street railway to jump from the car when it is going twenty miles an hour, whether or not he knows that the car is going so fast, and althongh the city ordinance restricts the speed to seven miles an hour, and the conductor is silent while he hears another tell such passenger that the car is not going to stop and that he had better get off. But any negligence of the plaintiff, however slight, that contributed to the injury, precludes, at common law, his recovery."

Lord Fitzgerald defines contributory negligence' as “the absence of that ordinary care which a sentient being ought rex. sonably to have taken for his own safety, and which, had it been exercised would have enabled him to avoid the injury of which he complained; or the doing of some act which he ought not to have done, and but for which the calamity would not have occurred.” Contributory negligence which will defeat a recovery consists in such acts or omissions on the part of the plaintiff, amounting to a want of ordinary care, as, concurring or co-oper

Lent v. Verr York Cent. & H. R. R. Co. 120 N. Y. 467.
Lehigh Valley R. Co. v. Greiner, 4 Cent. Rep. 898, 113 Pa. 600; Fernandez

v. Slucramento City R. Co. 52 Cal. 45.
3 North Birmingham St. R. Co. v. Calderwood, 89 Ala. 247.
4 Vichols v. Chicago & W. M. R. Co. (Mich.) Feb. 5, 1892.
Masterson v. Macon City & S. St. R. Co. (Ga.) Feb. 15, 1892.
Schoenfeld v. Milwaukee City R. Co. 74 Wis. 433.
* Wakelin v. London & S. W. R. Co. L. R. 12 App. ias. 51.


« PreviousContinue »