CHAPTER XIX.

INJURY TO CONSTITUTIONAL RIGHT OF PERSONAL SECURITY BY NEGLIGENCE-GENERAL PRINCIPLES.

§ 244.

Legal duty-To whom owed-Not indiscriminate.

§ 246a. Same continued-The prevailing rule restated.

§ 247.

§ 248.

Kind of care required to avoid negligence.
Ordinary care defined-When exacted.

§ 249. Standard of duty, how fixed.

Contributory negligence-General doctrine.
Comparative negligence.

§ 250.

§ 251.

§ 256. Questions of negligence, how decided.

$257. Negligence causing fright-Mental suffering, whether actionable.

§ 241. This Chapter will set forth the general principles of the wrong of negligence, and the law relating to injuries to the person by acts of negligence. The law of negligence occupies a conspicuous place in the relations of men, but the fundamental principles are the same wherever a question of neglect is involved, and are fundamental and comparatively simple. These will be first considered, briefly, because they are elementary and well understood, and because, furthermore, the law of negligence is such an extensive topic of the law that the scope of

this work forbids anything more than the essential elements.

It must be remembered that the prevailing idea and purpose of this work is to set forth the subject treated as an entirety, which task imposes restrictions and limitations throughout. The special application of these doctrines are found under the appropriate heads and chapters.

§ 242. Negligence Defined.-Numerous and various definitions of negligence may be found, and we shall be content with giving one which seems entirely satisfactory, with references to others. Negligence which will give rise to a cause of action is the failure to do what a reasonably prudent person would ordinarily have done under the circumstances of the situation; or doing what such person, under the existing circumstances, would not have done. It is the failure to observe that degree of care, precaution, and vigilance which the circumstances demand.1 It is the neglect to use ordinary care, or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill, or as under the cir cumstances is required, by reason of which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property.

1 Railroad Co. v. Jones, 95 U. S. 442; Tully v. Philadelphia etc. R. R. Co., 2 Pennewill, 537, 82 Am. St. Rep. 425, 47 Atl. 1019; Brotherton v. Manhattan Beach etc. Co., 48 Neb. 563, 58 Am. St. Rep. 709, 67 N. W. 479.

2 Heaven v. Pender, L. R. 11 Q. B. D. 503; Harriman v. Pittsburgh etc. Ry. Co., 45 Ohio St. 20, 4 Am. St. Rep. 507, 12 N. E. 451. For other definitions, see Shearman and Redfield on Negligence, sec. 3; Wharton on Negligence, sec. 3; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239; Pennsylvania Railroad Co. v. Ogier, 35 Pa. St. 60, 78 Am. Dec. 322; Beisiegel v. New York Cent. R. R. Co., 34 N. Y. 622, 90 Am. Dec. 741; Brotherton v. Manhattan Beach etc. Imp. Co., 48 Neb. 563, 58 Am. St. Rep. 709, 67 N. W. 479;

A legal duty and violation thereof are the two essential elements.3 Negligence cannot be defined by any rules of evidence; it must be inferred from all the facts of the case. It may sometimes be doubtful whether an injurious act was negligent or accidental.* Whether a cause of action accrues to an individual or in favor of the public from the violation of a statutory duty will depend upon the nature of the duty and the benefits to be derived from its performance.5 The question of negligence in violating a statute or ordinance is specially considered elsewhere. The duty to be cautious and vigilant is relative, and where that duty has no existence between particular parties, there can be no such thing as negligence, in the legal sense of the term."

§ 243. Legal Duty, Basis for Negligence.-The first requisite establishing negligence is to show the existence of some obligation or duty owing toward the person injured which has not been performed.8 To establish negligence, then, there must be a failure to perform a legal duty to the person injured." Thompson on Negligence, sec. 251; Miller v. Brown, 111 N. Y. 318, 7 Am. St. Rep. 751, 18 N. E. 722.

3 Bevens on Negligence, 2d ed., p. 18.

4 Danner v. South Carolina R. R. Co., 4 Rich. 329, 55 Am. Dec. 678. In Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45, where a passenger on a street railway car was thrown from the car and injured by the sudden stopping of the car in an effort to avoid collision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria.

5 Taylor v. Lake Shore etc. R. Co., 45 Mich. 74, 40 Am. Rep. 457, 7 N. W. 728; Hayes v. Michigan Cent. R. Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369.

6 See sec. 255, post.

7 Morris v. Brown, 111 N. Y. 318, 7 Am. St. Rep. 751, 18 N. E. 722. 8 City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155. • O'Leary v. Brooks Elevator Co., 7 N. Dak. 554, 75 N. W. 919; Akers v. Chicago etc. Ry. Co., 58 Minn. 544, 60 N. W. 670. It is

There can be no negligence, in a legal sense, which can give rise to a cause of action, unless there is a violation of a legal duty to exercise care. There can be no fault, or breach of duty, where there is no act, or service, or contract which a party is bound to perform or fulfill.10 The legal duty may arise from a reciprocal relation, such as between passenger and carrier, or it may be imposed by law, common law or statute. There can be no negligence independently of some imposed or correlative duty, and it must be essentially related to the particular circumstances under which the parties are placed. Negligence, then, always depends upon the measure of duty which the person causing the injury owes the injured; it is never presumed, but the duty must be shown.11

§ 244. Legal Duty-To Whom Owed-Not Indiscriminate. It requires accurate discrimination, in some instances, to determine whether one who is the cause of an injury owes a duty to the one injured, the violation of which will give rise to a cause of action. While the law considers proximate liabilities which are ordinarily confined to the persons who are immediately concerned in a transaction,12 yet there are cases where a third party, not in any wise connected with, or related to, the principal transaction between two parties, may be injured by the neglect

elementary that actionable negligence exists only when one negligently injures another to whom he owes the duty, created by contract or operation of law, of exercising care: Baltimore & Ohio etc. R. R. Co. v. Cox, 66 Ohio St. 276.

10 Larmore v. Crown Point Iron Co., 101 N. Y. 394, 54 Am. Rep. 718, 4 N. E. 752; Splittorf v. State, 108 N. Y. 205, 15 N. E. 322; Gault v. Humes, 20 Md. 297; Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644.

11 Baltimore City Pass. Ry. v. Nugent, 86 Md. 349, 38 Atl. 779; Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. 623, 14 N. E. 568. 12 Francis v. Cockrell, L. R. 5 Q. B. 501.

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of one of them upon whom the law imposes a public duty a breach of which gives rise to an action. This principle is applied only in a peculiar class of cases, such as the manufacture and sale of machinery, or goods of an inherently dangerous character, without disclosing its true nature, or where the same is defective, which is known to the vendor,13 and in the preparation and sale of poisonous drugs14 and explosives. In such cases because of the danger to life, the law casts upon both manufacturer and apothecary the obligation to use due care toward third persons.1 Hence a druggist who sells a deadly poison labeled as a harmless drug is liable to one who takes it and suffers injury therefrom, though purchased by another.16 And so if such person die from taking the poison, the dealer would be liable to his personal representative for wrongful death under the statute.17 So a shipper of a dangerous explosive, without accompanying the same with the necessary information as to its dangerous character, is liable for any injury to anyone caused therefrom while it is in transit.18 And so if manufacturers and vendors of petroleum put upon the market, for sale for illuminating purposes, an oil which they know to be below the legal fire test, they are liable for death or injury caused by an explosion of a lamp, even though the oil had been purchased

13 Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482, 19 S. W. 630; Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103.

14 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455.

15 Id.

16 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455.

17 Norton v. Sewall, 106 Mass. 144, 8 Am. Rep. 298; Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. E. 350.

18 Barney v. Burstenbinder, 7 Lans. 213, 64 Barb. 213; Wellington v. Downer etc. Oil Co., 104 Mass. 64.

Torts, Vol. I-33