Page:The New International Encyclopædia 1st ed. v. 14.djvu/385

* NEGLIGENCE. 335 NEGLIGENCE. persons liable for harm caused by their aets or uniissiuiis, whether tliese are negligent or not. Tile doctrine was laid down by an eminent Knglisli judge as follows: "Tlu' per- son who lor his own jiurpose brings on his land, and collects and keejis there, any- thing liable to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse hiins(df by showing that the escape was owing to the plaintilf's default, or was tiie consequence of the act of God." This view has not been adopted to any extent in the I'niti'd States, the courts prcfi'rriug tlu' rule that one who brings dangerous agencies upon his land or under his control is not an insurer of the safety of others, but that he is bound to exercise a care over them commensurate with the ap- parent risk in each case. » The terms gross negligence, ordinary negli- gence, and slight negligence are often used, al- though the modern tendency is to discard them. YIien emplo^'ed, the first represents tlie extreme of negligence — a want of care amounting almost to recklessness; the second is the absence of Euch care as an ordinarily prudent man exercises; and the third stands for the lack of care re- quired of one who is doing a favor to the injured party, such as keeping his property gratuitously. Legal Dlty. Passing now to the legal duty of exercising care, it sjunild be borne in mind that this is relative, not absolute; and conse- quently, when it has no existence between par- ticular parties, there can be no such thing as negligence in the legal sense of the term. In otlier words, a man may be very careless without being negligent. To illustrate: the owner of a sugar orchard left a bucket of hot maple syrup uncovered in his woods. A neighbor's imruly cow jumped the fence, wandered into the woods, and died from drinking the syrup. Leaving the syrup thus was careless so far as protecting it from harm was concerned; but it was not negligence, toward the owner of the cow. for the owner of the syrup was luuler no legal duty to exercise ordinary care toward trespassers, and the act of the cow was a trespass (q.v.). Toward tres- passers the duty of a landowner, a conmion car- rier, or the like, is simply to refrain from in- flicting willful or want<m injury. Toward a licensee, that is, one whom a persim barely per- mits to be upon his premises or in his vehicle, the licensor owes some duty of care; but the amount of care is slight. As a rule the licensee takes the risk of tlie situation. There must be soMietliing like fraud on the part of the licensor before he can be held answerable for injuries sustained by the licensee in falling into unguard- ed excavations, or breaking through defective floors, staircases. ]iavenients. or the like, or get- ting caught by unfenced machinery or being thrown from a collapsing carriage. The licensor is bound, however, not to open now excavations in or near a path wdiich he knows licensees are accustomed to traverse, or to subject them to anything like )nan-tra|)s or new and serious dangers withojit giving them warning. An or- dinary guest is generally looked upon by the law as a mere licensee. Toward persons expressly or impliedly invited upon one's property in a mat- ter of common interest, the inviter is under a well-defined duty — the duty of making the prop- erty reasonably safe, lie is not under an abso- lute duty to prevent harnv, but only a duty to make the place as little dangerous as such a I)lace would reasonably be, having regard to the ordinary exigencies of the business there car- ried on. Legal H.R5I. Even when it is shown that the defendant has been guilty of negligence toward the plaintilf, the latter may fail in his action because he cannot show that he has sustained legal harm by such negligence. A striking illus- tration of this rule is a Horded where one is made sick by a nervous shock due to another's negli- gence. Through the fault of a railroad company, for example, a car takes fire, and several pas- sengers are so badly frightened that they faint and for weeks are confined to their beds by conse- quent sielcness. According to the prevailing doc- trine in England and in the United States, they have no cause of action against the company. Various reasons are assigned in its support. One is that such sickness is not the natural and probable consequence of the negligence; that it occurs only when there is an accidental or un- usual combination of circumstances which could not have been reasonably anticipated by the de- fendant, and over whi<-h he Inul no control. An- other reason urged is that to hold a defendant liable for mental anguish, or fright, or nervous shock, would cause an alarming increase in the volume of sham litigations. Every passenger in case of a railroad collision could allege fright or nervous shock and thus maintain anaction against the company. In a few jurisdictions. however, men- tal anguish, even without consequent or attendant physical injury, is deemed legal damage. It is generally held that if the defendant's negligence causes injury to one's body, recovery may be had for the pain and suft'ering which are incident thereto. Not only must the harm sustained by the plaintiff be of a character which the law deems it wise to recompense, but it must be. in con- templation of law, the natural and probable con- sequence of defendant's negligence. When negli- gence is to be deemed the proximate cause, and when the remote cause, is often a question of great difficulty. Ordinarily it is a mixed question of law and fact, to be submitted to the jury under proper instructions from the court, although, if the evidence is not conflicting, and the court thinks that but one inference can be drawn from it by reasonable men, it will decide the question itself. When the inquiry is sent to a jury, they- are generally instructed that the pro])er test to be applied by them is: Was there an unbroken connection between the negligence and the injury? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the in- jury? Applying this test, the idaintill' was beaten in the following case: Defendant, a railroad company, received a quantity of wool for trans- portation from I'ulTalo to Albany, N. Y., and for delivery there to another company for transporta- tion to Boston, Mass. It was negligent in start- ing the wool on its journey, so that it reached Albany ten days later than it would but for such negligence. While in defendant's warehouse awaiting the call of the second carrier the wool