wagons, as opportunity offered, while going from his home to the business district. One day, by permission of the driver, he got on a wagon that was loaded with brick, standing up on the rear of the wagon and holding to the end gate. The wagon was one of a procession of loaded teams in a street-car track. The next wagon behind was being driven by defendant's servant. The pole of this wagon struck the plaintiff's leg, inflicting a serious wound. For this injury the plaintiff sought to recover damages. The defense was contributory negligence. The trial court told the jury that the plaintiff was bound to use with regard to his own safety the "ordinary care of a boy of his age". On appeal this instruction was held erroneous. After adverting to the plaintiff's age and experience, the court quoted with approval the following passage from Judge Thompson's Commentaries on the Law of Negligence:

"Two lads of equal age and natural capacity, one of them raised in the country and the other in the city, might approach a given danger, and the one would be perfectly competent to care for himself while the other would be helpless in the face of it. Therefore, the capacity, the intelligence, the knowledge, the experience, and the discretion of the child are always evidentiary circumstances-circumstances with reference to which each party has the right to introduce evidence, which evidence is to be considered by the jury."'13

DEGREES OF CARE AND NEGLIGENCE

§ 17. Are There Degrees of Care and Negligence? From the discussion in the last section it appears that ordinary care as there defined is the standard usually adopted in determining whether or not a person has been guilty of negligence. But the expression "ordinary care" seems to imply that care may, in fact, be greater or less than ordinary. Does the law really recognize degrees of care and corresponding degrees of negligence? Some authorities have answered this question in the affirmative and others in the 13 Thompson, Commentaries on the Law of Negligence, Vol. 1, § 309.

negative. Some courts and writers have said that there are three degrees of care, great, ordinary, and slight, and that corresponding to them are three degrees of negligence, slight, ordinary, and gross. In a case in which they recognize a duty of great care, they would hold the defendant liable for slight negligence; where they recognize a duty of ordinary care they would not hold him liable for slight negligence but would hold him liable for ordinary negligence; and where they recognize a duty of slight care only they would hold him liable for gross negligence only.14 Others have contended that there are but two degrees of care, that which would be observed by a specialist with regard to the matter in hand, and that which would be exercised by a non-specialist, and consequently that there are but two corresponding degrees of negligence.15 Still others have insisted that there are no degrees of either care or negligence; that ordinary care is an adequate universal standard and that any failure to exercise ordinary care should be regarded as simple negligence.16 It has also been argued that even if we recognize varying degrees of care it is useless to recognize corresponding degrees of negligence since any failure to exercise the amount of care due under the circumstances will constitute actionable negligence, provided only that such failure is the legal cause of actual damage to the plaintiff.17

§ 18. Ordinary Care not always an Adequate Measure of Duty-Degrees of Care and Negligence Must Be Recognized in Certain Relations. In the nature of things there is no reason why the law should not prescribe the exercise of more than ordinary care in certain relations and yet exact less than ordinary care in others, while requiring only ordinary care in the average case. And this is what the law seems to have done. Thus, in the article on Bailments it appears that the law imposes upon a bailee the duty of

14 Burdick, Law of Torts, p. 422.

15 Wharton, Negligence (2d ed.) § 636.

18 Lake Erie & Western R. R. Co. v. Ford, 167 Ind. 205.

17 Bradley, J. in N. Y. Cent. R. v. Lockwood, 17 Wallace 382-384.

slight, ordinary or great care according as the bailment is for the exclusive benefit of the bailor, the mutual benefit of both bailor and bailee, or the exclusive benefit of the bailee; in the same connection it also appears that the law of bailments recognizes corresponding degrees of negligence. Since a bailor may maintain an action in tort against a bailee for damage resulting from the failure to observe the degree of care due in the particular case,18 it seems futile to declare that degrees of care and negligence have no place in the law of torts. Similarly, as will be seen in a subsequent section, the duty of care on the part of the occupier of land or buildings depends largely upon whether the person to whom the duty is owed is a trespasser, a licensee or a business visitor, being least in the case of the trespasser and greatest in the case of the business visitor.19

Again, as will be seen in the article on Carriers, the law imposes upon public carriers of passengers an extraordinary duty of care, requiring generally the highest degree of care of which human foresight is capable. Finally, statutes not infrequently prescribe varying degrees of care as requisite in certain cases.20 In view of these considerations it is plain that ordinary care cannot be regarded as the true measure of the defendant's duty in all cases; in some relations the law does recognize degrees of both care and negligence and attaches considerable importance thereto. At the same time it cannot be fairly argued that these instances of an actual recognition of degrees of care and negligence prove that the law of torts regards such recognition as other than exceptional. Much less can it be contended that they show a general recognition of three distinct degrees.

§ 19. Ordinary Care the True Measure of Duty in Most Cases. Although it is true that ordinary care is not the exact measure of duty in all cases, we may, nevertheless, say that it is the true measure in the vast majority of cases. The amount of effort required to meet the demands of ordi

18 Burdick, Law of Torts, pp. 16-17.

19 See infra §§ 22-29 of this ch.

20 Lanci v. Boston Elevated Ry., 197 Mass. 32.

nary prudence will of course vary with the circumstances. Everybody knows that more diligence is required in running a locomotive than in driving a family horse. None will deny that handling dynamite calls for the taking of greater precautions than does handling sand. And yet it is plain that the standard of care, the care which a man of ordinary prudence would exercise under the circumstances, may fairly be said to remain unchanged. Such a man will naturally regulate the amount of his active care, the nature and extent of his efforts to avoid doing harm, by the character of the circumstances that give rise to the particular danger. The general adequacy of ordinary care as a measure of duty is well illustrated by Hill v. Glenwood,21 a recent case in which a blind plaintiff sought to recover damages against a city for injuries which he alleged had resulted from the city's negligence in maintaining a sidewalk. The defense was contributory negligence. The trial court told the jury that it was incumbent upon the plaintiff to exercise "such care as an ordinarily prudent person would exercise under the circumstances." The defendant contended that this was erroneous, arguing that the conceded fact of the plaintiff's blindness made it the duty of the court to say to the jury that a blind person who attempts to use the public street "must exercise a higher degree of care and caution than a person ordinarily would be expected or required to use had he full possession of his sense of sight."

In upholding the instruction given, the higher court used this language:

"The streets are for the use of the general public without discrimination; for the weak, the lame, the halt and the blind, as well as for those possessing perfect health, strength and vision. The law casts upon one no greater burden of care than the other. It is true, however, that in determining what is reasonable or ordinary care we must look to the circumstances and surroundings of each particular case....... In the case before us the plaintiff's blind

21 124 Iowa 479.

ness is simply one of the facts to which the jury must give consideration, in finding whether he did or did not act with the care which a reasonably prudent man would ordinarily exercise, when burdened by such infirmity. In other words, the measures which a traveler on the street must employ for his own protection depend upon the nature and extent of the peril to which he knows, or in the exercise of reasonable prudence ought to know, he is exposed. The greater and more imminent the risk, the more he is required to look out for and guard against injury to himself; but the care thus exercised is neither more nor less than ordinary carethe care which men of ordinary prudence may reasonably be expected to exercise under like circumstances."

Assumption of Skill. It may be thought that the standard of ordinary care is inadequate when applied to conduct in a matter requiring special skill. The following case may be put: suppose a man of ordinary prudence undertakes to act as a locomotive engineer or as an apothecary; that in the discharge of his undertaking he exercises all the care of which he, a man of ordinary prudence, is capable; and yet, from inexperience and lack of the special skill which all men know that such callings require, he brings disaster to others. Will he not be liable? The answer is that such a case is impossible. A man of ordinary prudence would not undertake to run a locomotive or compound a prescription unless he really possessed the skill that such an undertaking requires. Says Sir Frederick Pollock:

"A man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman; if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril."'22

22 Webb's Pollock on Torts, p. 26.