From Classic Encyclopedia 1911
NEGLIGENCE (Lat. negligentia, from negligere, to neglect, literally "not to pick up"), a ground of civil law liability, and in criminal law an element in several offences, the most conspicuous of which is manslaughter by negligence. In order to establish civil liability on the ground of negligence, three things must be proved - a duty to take care, the absence of due care, and actual damage caused directly by the absence of due care. Mere carelessness gives no right of action unless the person injured can show that there was a legal duty to take care. The duty may be to the public in general, on the ground that any person who does anything which may involve risk to the public is bound to take due care to avoid the risk. For instance, in the words of Lord Blackburn, "those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision." Where a special duty to an individual is alleged, the duty must rest on a contract or undertaking or some similar specific ground. Thus, where a surveyor has carelessly given incorrect progress certificates, and a mortgagee who has had no contractual relation with the surveyor has advanced money on the faith of the certificate, the surveyor is not liable to the mortgagee in an action of negligence; because he owed no duty to the mortgagee to be careful. When a duty to take care is established, the degree of care required is now determined by a well-ascertained standard. This standard is the amount of care which would be exercised in the circumstances by an "average reasonable man." This objective standard excludes consideration of the capacity or state of mind of the particular individual. It also gets rid of the old distinctions between "gross," "ordinary" and "slight" negligence, though no doubt the degree of care required varies with the circumstances of the case. The application of such a standard is a task for which a jury is a very appropriate tribunal. In fact the decision of the question whether there has been a want of due care is left almost unreservedly to the jury. There is this amount of control, that if the judge is of opinion that the evidence, if believed, cannot possibly be regarded as showing want of due care, or in technical language that there is "no evidence of negligence," it is his duty to withdraw the case from the jury and give judgment for the defendant. Unless the judge decides that there is no duty to take care, or that there is no evidence of want of care, the question of negligence or no negligence is wholly for the jury.
Ordinarily a man is responsible only for his own negligence and for that of his servants and agents acting within the scope of their authority. For the acts or defaults of the servants of an independent contractor he is not liable. But in certain cases a stricter obligation is imposed on him by law. The occupier of premises is under a duty to all persons who go there on business which concerns him to see that the premises are in a reasonably safe condition so far as reasonable care and skill can make them so. Thus he cannot release himself by employing an independent contractor to maintain or repair the premises. The effect of this doctrine is that the occupier may be liable if it can be shown that the independent contractor or his servant has been guilty of a want of due care. A similar obligation has been enforced in the case of a wreck stranded in a navigable river, and the owner was held liable for damage caused by the carelessness of the servant of an independent contractor who had undertaken to light the wreck. So too any person who undertakes a work likely to cause danger if due care is not taken is liable for damage caused by the carelessness of the servant of an independent contractor, so long as the carelessness is not casual or collateral to the servant's employment.
In an action of negligence a familiar defence is "contributory negligence." This is a rather misleading expression. It is not a sufficient defence to show that the plaintiff was negligent, and that his negligence contributed to the harm complained of. The plaintiff's negligence will not disentitle him to recover unless it is such that without it the misfortune would not have happened, nor if the defendant might by the exercise of reasonable care on his part have avoided the consequences of the plaintiff's negligence. The shortest and plainest way of expressing this rule is, that the plaintiff's negligence is no defence unless it was the proximate or decisive cause of the injury. There was an attempt in recent times to extend this doctrine so as to make the contributory negligence of a third person a defence, in cases where the plaintiff, though not negligent himself, was travelling in a vehicle or vessel managed by the negligent third person, or was otherwise under his control. In such circumstances it was said that the plaintiff was "identified" with the third person. (Waite v. North-Eastern Ry. Co., 1858, E. B. & E., 719). This case, in the Exchequer Chamber, was an action on behalf of an infant by his next friend. The infant, which was five years of age, was with its grandmother, who took a half-ticket for the child and a ticket for herself to travel by the defendants' line; as they were crossing the railway to be ready for the train the child was injured by a passing train. The jury found that the defendants were guilty of negligence, and that the grandmother was guilty of negligence which contributed to the accident, while there was no negligence of the infant plaintiff. A verdict was entered for the plaintiff, but in the Queen's Bench the verdict was entered for the defendants, without calling on them to argue, on the ground that the infant was identified with its grandmother. But the case of the "Bernina," decided in 1888, where a passenger and an engineer on board the "Bushire" were killed in a collision between the "Bernina" and the "Bushire" caused by fault in both ships, but without fault on the part of the deceased, exploded this supposed doctrine, and made it clear that the defence of contributory negligence holds good only when the defendant contends and proves that the plaintiff was injured by his own carelessness.
See T. Beven, Negligence in Law, 3rd ed., 1908; Shearman and Redfield, The Law of Negligence (New York), Thompson, Commentaries on Negligence (Indianapolis). (A. LL. D.)