Negligence

the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done

The breach of a legal noncontractual duty to use care, with no precise intention of producing a particular injury thereby. See Shear. & R. Neg. §3; Beven, Emp. Liab. An inadvertent imperfection by a responsible human agent in the discharge of a legal duty, which produces, in an orderly and natural sequence, a damage to another. Whart. Neg. § 3. Any lack of carefulness in one's conduct, whether in doing, or in abstaining from doing, wherefrom by reason of its not filling the full measure of the law's requirement in the particular circumstances there comes to another a legal injury. Bish. Non-Cont. Law, §436. Negligence has been defined as the doing or omission of something which a reasonable prudent person would not have done or omitted under the circumstances (95 U. S. 439); but this is rather a statement of what constitutes proper care, and moreover omits the element of a duty imposed by law which is broken by the negligent act or omission (Pollock, Torts, 352). prisoner as he is bound to take, when in consequence thereof the prisoner departs from his confinement without the knowledge or consent of the gaoler, and eludes pursuit. For a negligent escape, the sheriff or keeper of the prison is liable to punishment, in a criminal case; and in a civil case, he is liable to an action for damages at the suit of the plaintiff. In both cases the prisoner may be retaken. 3 Bl. Comm. 415. See "Escape." NEGLIGENTIA (Lat. from negliffere, to neglect).

In the civil law. Negligence, want or omission of care or attention; inattention. This term hardly seems to correspond with what is called in English simple "negligence," since it 1x)ok a high degree of it to constitute culpa, or fault. Magna negligentia culpa est. Dig. 50. 16, 226. See "Culpa." NEGLIGENTIA SEMPER HABET INFORtuniam comitem. Negligence always has misfortune for a companion. Co. Litt. 246; Shep. Touch. 476.

The omission to do semething 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. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. NitroGlycerin Case, 15 Wall. 536, 21 L. Ed. 206; Blythe v. Birmingham Waterworks Co., 11 Exch. 784. Negligence, in its civil relation, is such an inadvertent imperfection, by a responsible human agent, in the dlscharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. Whart. Neg. § 3. It is conceded by all the authorities that the standard by which to determine whether a person has been guilty of negligence is the conduct of the prudent or careful or diligent man. Bigelow, Torte, 261. The failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Co.oley, Torts, 630. The failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or the doing what such a person under the existing circumstances would not have done. Baltimore & P. R. Co. v. Jones, 95 U. S. 441, 24 L. Ed. 506. The opposite of care and prudence; the omission to use the means reasonably necessary to avoid injury to others Great Western R. Co. v. Haworth, 39 111. 353. Negligence or carelessness signifies want of care, caution, attention, diligence, or discretion in one having no positive intention to injure the person complaining thereof. The words "reckless," "indifferent," "careless," and "wanton" are never understood to signify positive will or intention, unless when joined with other words which show that they are to receive an artificial or unusual, if not an unnatural, interpretation. Lexington v. Lewis, 10 Bush (Ky.) 077. Negligence is any culpable omission of a positive duty. It differs from heedlessness, in that heedlessness is the doing of an act in violation of a negative duty, without adverting to its possible consequences. In both cases there is inadvertence, and there is breach of duty. Aust. Jur. § 630.

— Actionable negligence. See Actionable.

— Collateral negligence. In the law relating to the responsibility of an employer or principal for the negligent acts or omissions of his employe, the term "collateral" negligence is sometimes used to describe negligence attributable to a contractor employed by the principal and for which the latter is not responsible, though he would be responsible for the same thing if done by his servant. Weber v. Railway Co.., 20 App. Div. 292, 47 N. Y. Supp. 11.

— Comparative negligence. See Comparative.

— Contributory negligence. Contributory negligence, when set up as a defense to an action for injuries alleged to have been caused by the defendant's negligence, means any want of ordinary care on the part of the person injured, (or on the part of another whose negligence is imputable to him,) which combined and concurred with the defendant's negligence, and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred. Railroad Co., v. Young, 153 Ind. 163, 54 N E. 791; Deli v. Glass Co., 169 Pa. 549, 32 Atl. 6Ol; Barton v. Railroad Co., 52 Mo. 253, 14 Am. Rep. 418; Plant Inv. Co v. Cook, 74 Fed. 503, 20 C. C. A. 625; McLaughlin v. Electric Light Co... 100 Ky. 173, 37 S. W. 851, 34 L. R. A. 812; Riley v. Railway Co.., 27 W. Va. 164,

— Criminal negligence. Negligence of such a character, or occurring under such circumstances, as to be punishable as a crime by statute; or (at common law) such a flagrant and reckless disregard of the safety of others, or wilful indifference to the injury liable to follow, as to convert an act otherwise lawful into a crime when it results in personal injury or death. 4 Bl. Comm. 192, note; Co.ok v. Railroad Co.., 72 Ga. 48; Rankin v. Transportation Co., 73 Ga. 229, 54 Am. Rep. 874; Railroad Co. v. Chollette, 33 Neb. 143, 49 N. W. 1114,

— Culpable negligence. Failure to exercise that degree of care rendered appropriate by the particular circumstances, and which a man of ordinary prudence in the same situation and with equni experience would not have omitted. Carter v. Lumbar Co., 129 N. C. 203, 39 S. El 828; Railroad Co., v. Newman, 36 Ark. 611; Woodman v. Nottingham, 49 N. H. 387, 6 Am. Rep. 526; Kimball v. Palmer, 80 Fed. 240, 25 C. C. A. 394; Railway Co. v. Brown, 44 Kan. 384, 24 Pac. 497 ; Railroad Co. v. Plaskett. 47 Kan. 107, 26 Pac. 401,

— Gross negligence. In the law of bailment. The want of slight diligence. The want of that care which every man of common sense, how inattentive soever, takes of his own property. The omission of that care which even inattentive and thoughtless men never full to -take of their own property. Litchfield v. White, 7 N. Y. 442, 57 Am. Dec. 534; Lycoming Ins. Co. v. Barringer, 73 III. 235; Seybel v. National Currency Bank. 54 N. Y. 299, 13 Am. Rep. 583; Bannon v. Baltimore & O. R. Co... 24 Md. 124; Briggs v. Spaniding, 141 U. S. 132, 11 Sup. Ct. 925, 35 L. Eld. 662; Preston v. Prather, 137 U. S. 604, 11 Sup. Ct 162, 34 In Ed. 788. In the law of torts (and especially with reference to personal injury cases), the term means such negligence as evidences a reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or that entire want of care which would raise the presumption of a conscious indifference to the rights of others which is equivalent to an intentional violation of them. McDonald v. Railroad Co.. (Tex. Civ. App.) 21 S. W. 775; Railroad Co., v. Robinson. 4 Bush (Ky.) 509; Railroad Co., v. Bodemer, 139 111. 596, 29 N. E. 692, 32 Am. St. Rep. 218; Denman v. Johnston, 85 Mich. 387, 48 N. W. 565; Rnilroad Co. v. Orr, 121 A.a. 489, 26 South. 35 ; Coit v. Western Union Tel. Co., 130 Cal. 657, 63 Pac. 83, 53 L. R. A. 678, 80 Am. St. Rep. 153.

— Hazardous negligence. Such careless or reckless conduct as exposes one to very great danger of injury or to imminent peril. See Riggs v. Standard Oil Co.. (C. Ct) l3b Fed. 204

— Legal negligence. Negligence per se; the omission of such care as ordinarily prudent persons exercise and deem adequate to the circumstances of the case. In cases where the common experience of mankind and the common judgment of prudent persons have recognized that to do or omit certain acts is prolific of danger, the doing or omission of them is "legal negligence." Carrico v. Railway Co., 35 W. Va. 389, 14 S. E. 12; Drake v. Wild, 70 Vt. 52. 39 Atl. 248; Johnson v. Railway Co.., 49 Wis. 529, 6 N. W. 886,

— Negligence per se. Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be snid without hesitation or doubt that no careful person would have been guilty of it. See Missouri Pac. Ry. Co. v. Lee, 70 Tex. 496. 7 S. W. 857; Central It& B. Co. v. Smith, 78 Ga. 694, 3 S E. 397; Murray v. Missouri Pac. R. Co., 101 Mo. 236, 13 S. W. 817, 20 Am. St. Rep. 601; Moser v. Union Traction Co., 205 Pa. 48l, 55 Atl. 15,

— Ordinary negligence. The omission of that care which a man of common prudence usually takes of his own concerns. Ouderkirk v. Central Nat. Bank, 119 N. Y. 263. 23 N. E. 875; Scott v. Depeyster, 1 Edw. Ch. (N. Y.) 543; Tyler v Nelson, 109 Mich 37. 66 N. W. 671; Ton-cray v. Dodge County, 33 Neb. 802, 51 N. W. 235; Briggs v. Spaulding, 14i U. S. 132, ll Sup. Ot. 924, 35 In Ed. 662; Lake Shore, etc.. By. Co., v. Murphy, 50 Ohio St. 135, 33 N. E. 403.

— Slight negligence. Slight negligence is not slight want of ordinary care contributing to the injury, which would defeat an action for negligence. Slight negligence is defined to be only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use. Briggs. v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 92A, 35 It. Bid. 662; French v. Buffalo, etc., R. Co., 48 N. Y. 108; Litchfield v. White, 7 N. Y. 488, 57 Am. Dec. 534; Griffin v. Willow, 43 Wis. 512.

— Wanton negligence. Reckless indifference to the consequences of an act or omission, where the party acting or failing to act is conscious of his conduct and, without any actual intent to injure, la aware, from his knowledge of existing circumstances and conditions, that his conduct will inevitably or probably result in injury to another. Louisville & N. R. Co., v. Webb, 97 Ain. 308, 12 South. 374; Alabama G. S. R. Co. v. Hall, 105 Ala. 599, 17 South. 176.

— Willful negligence. Though rejected by some couris and writers as involving a contradiction of terms, this phrase is occasionally used to describe a higher or more aggravated form of negligence than "gross." It then means a willful determination not to perform a known duty, or a reckless disregard of the safety or the rights of others, as manifested by the conscious and intentional omission of the care proper under the circumstances. See Victor Co.ai Co. v. Muir, 20 Colo. 320, 38 Pac. 378, 26 In R. A. 435, 46 Am. St. Rep. 299 ; Holwerson v. Railway Co.., 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Lockwood v. Rnilway Co.., 92 Wis. 97, 65 N. W. 866; Kentucky Cant. R. Co., v. Carr '(Ky.) 43 S. W. 193, 19 Ky. Law Rep-1172; Florida Southern Ry. v. Hirst, 30 Fla-1, 11 South. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17; Lexington v. Lewis, 10 Bush (Ely.) 680; Illinois Cant. R. Co., v. Leiner, 202 III. 624, 67 N. E. 398. 95 Am. St. Rep. 266.

Tlie omission of care or diligence; the omission of that, degree of care which a man of common prudence takes in his own concerns. Negligence is distinguished, though the distinction is objected to, as of three degrees, slight, ordinary and gross. In whatever degree, it is but a want of the care and diligence due in the circumstances, v. Care. Coniparatiye negligence: negligence on the part of a plaintiff which is to be regarded as slight, in comparison with negligence of the other party, which in the comparisbn is gross, which, though in a degree contributory, will not prevent a recovery, if it does not amount to a want of ordinary care. Contributory negligence: the absence of reasonable or ordinary care and caution on the part of a person injured by negligence of another. Criminal negligence: acts of gross negligence made punishable as criminal offenses, as acts by common carriers of passengers and their servants.

The omission to do something which a reasonable man, guided by those considerations whieh ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would noi do. It must be determined in all cases by reference to the situation and knowledge of the parties and all tho attendant circumstances. 15 Wall. 536; 11 Exch. 784. Negligence, in its civil relation, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, a3 immediately produces, in an ordinary and natural sequence, a damage to another, Whart, Neg. § 3. It is conceded by ali the authorities that the eonduct of the prudent or careful or diligent man. Bigelow, Torts, 261. The failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilunce which the circumstances justly demand, whereby such other person suffers injury. Cooley, Torts, 630. The failure to do what'a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or the doing what such @ person under the existing circumstances would not havedone. 95 U.S. 441. The opposite of care and prudence; the omission to use the means reasonably necessary to avoid injury to others. 39 Ill. 353. Negligence or carelessness signifies want of care, caution, attention, diligence, or discretion in one having no positive intention to injure the pergon complaining thereof, The words “reckless,” “indifferent,” “careless, ” and “wanton” are never understood to signify positive will or intention, unless when joined with other words which show that they are to receive an artificial or unusual, if notan unnatural, interpretation. 10 Bush, 677. Negligence is any culpable omission of @ positive duty. It differs from heedlessness, in that heedlessness is the doing of an act in violation of &@ negative duty, without adverting to its possible consequences. In both cases there is inacdvertence, and there is breach of duty. Aust. Jur. § 630. Negligence is commonly classed under three degrees,—slight, ordinary, and gross. Slight negligence consists in the want of great care and diligence; ordinary negligence, in the want of ordinary care and diligence; and gross negligence, in the want of slight care and diligence. Civil Code Dak. § 2102. See, further, Cank; Gross NEGLI- GENCE; SLIGHT NEGLIGENCE. Negligence cannot be considered “gross” unless evidenced by an entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that the person on whom care was incumbent was indifferent to the interest and welfare of others. 64 Tex. 156.

Lack of diligence; omission of due care; failure to use the efforts or take the precautions which an ordinarily prudent person would employ in like circumstances. Upon the distinction between gross, ordinary, and slight negligence, see those expressions. See also Contributive. The cases upon negligence, and the stitutes negligence, relate in great part not to the meaning of the word, but to the question, what are the proper and prudent rules for conducting a business or performing an act in question. Tiius, a decision that a constructor of street improvements, who leaves an excavation open all night, unguarded, is chargeable with negligence, does not in truth turn upon the meaning of the word, but shows what is the proper duty of a person engaged in such works. A decision that it is negligence for a railway engineer to omit the whistle at a crossing means that a duty rests on an engineer to blow the whistle; it has no proper bearing on the meaning of the word negligence. We give such representative cases only as discuss the general meaning of the word. Negligence is where a person neglects or omits to do a thing which he is by law obliged to. Jacob. Negligence is any culpable omission of a positive duty. It differs from heedlessness, in that heedlessness is the doing of an act in violation of a negative duty, without adverting to Its possible consequences. In both cases there is inadvertence, and there is breach of duty. Aust. Jur. Lects. 19, 20, 24. Negligence, in reference to the keeping of property, is divided by Sir W. Jones into three kinds: Gross negligence, which is the want of that care which every man of common sense takes of his own property; ordinary negligence, which is the omission of that care which men of prudence take of their concerns; and slight negligence, which is the omission of that diligence which very circumspect and careful persons employ. 2 Steph. Com. 81, 82, and note (c). The question what shall be considered negligence, for which a person injured by it may recover damages, is a question for the jury, subject to certain rules of law, or of common sense, according to which the measure of culpable negligence varies according as the circumstances of the cases differ. In all cases, the first point to settle is the amount or degree of diligence exigible from the defendant, for by means of that positive criterion it is possible to ascertain in the next place the amount or degree of negligence on the defendant's part which will involve him in liability for the damage which has arisen. The rule is, that the negligence is inversely in proportion to the diligence. For example, if but slight diligence {levis diliyentia) is exigible, then only gross negligence (crassa negligentia), amounting also to wilfulness or intentionality {dolus), will render the defendant liable, as depositaries or mandatories. And, on the other hand, if extreme diligence (exacta diligentia) is exigible, then the slightest negligence (/em negligentia or levis culpa) will in like manner render the defendant liable, as is the case with inn-keepers, carriers, and generally with paid bailees. Subject to these rules, the question is one of fact. Brown. Negligence 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. Nitroglycerine Case, 15 Wall. 524; BIythe v. Birmingham Waterworks, 36 Eng. L. ^ Eg. 506. Negligence is the want of that care which men of common sense and common prudence ordinarily exercise in like employments. Bizzell V. Booker, 16 Ark. 308; O'Brien v. R. R. Co., 3 PMla. 76. Where there is no obligation of care or caution, there can be no negligence. Thus, in so far as one is not under obligation to be cautious in behalf of a wrong-doer, the latter cannot charge him for negligence. Needham v. San Francisco, &c. K. R. Co., 37 Cat. 409, 423. Gross negligence, in a condition in a policy of insurance exempting from loss on that account, means the want of that diligence which even careless men are accustomed to exercise. Lycoming Ins. Co. v. Barringer, 73 Til. 2.30. That a mistake is not negligence, see Flournoy v. Jeffersonville, 17 Ind. 169. Negligence is the want of that care which a prudent man ordinarily exercises under the giyen circumstances. Shehan v. Cornwall, 29 Iowa, 99. / The reasonable belief of a party that he will iuot sustain an injury in doing acts which, but for such belief, would be negligent, does not exonerate him from the charge of contributive negligence. Muldowney^ v. Illinois Central E. E. Co., 36 Iowa, 462. Negligence or carelessness signifies want of ca Ke, caution, attention, ^Hgence, ' or discretion in one baring no positive intention to anjure the person complaining thereof, the words " reckless," " indifferent," " careless," and " wanton " are never understood ito signify positive will or intention, unless when joined with other words which -show that they are to receive an artificial or unusual, S not an unnatural, interpretation. Lexington v. Lewis, 10 Bush, 677. Negligence is a violation of the obligation which enjoins care and caution in what we do. Even'wheu gross, it is but an omission of duty. Tonaiwanda E. E. Go. v. Hunger, 6 Den..255, 266; 4 A'. Y. 349; Carroll v. N. Y. & New Haven E. E. Co., 1 Buer, 571, 583. Negligence means simply the want of Negligence consists in omitting to do what a person ought to do. It is of the essence of negligence that the party charged should have knowledge that there was a duty for him to perform; or he must have omitted to inform himself as to what his duty was, in a given case. Knowledge is presumed, in a great number of cases, and the party will not be permitted to prove that he had not knowledge of his duty. Every man is presumed to know the law; and hence, when the law imposes a duty on a man, it presumes that he knew of it; and it will not permit him to prove that he did not. When the specified duty is not imposed, by either the statute or the common law, the party alleging negligence must show that the accused was cognizant of the duty he is charged with having neglected. Sherman v. Western Transp. Co., 62 Barb. 150. The law will not hold it imprudent in one to act upon the presumption that another, in his conduct, will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. Newson v. New York, &c. R. E. Co:, 29 N. Y. 383. To support an action for negligence, there must be proof of carelessness at the time of the accident; general recklessness will not suffice. King v. Mc Dermott, 2 Phila. 175. To constitute negligence, there must be a disregard of some duty or rule of conduct prescribed beforehand, or arising so manifestly from the facts as to leave no doubt of its existence. Warner v. E. R. Co., 6 Phila. 537. Where the law imposes a duty on a party, and he is disabled to perform it by the act of God, the performance is excused. Mosely v. Baker, 2 Sneed, 362. One may act in good faith, and still be guilty of gross negligence. Lincoln v. Buckmaster, 32 Vt. 652. The term negligence embraces acts of omission, as well as of commission, in its legal signification, and diligence implies action as well as forbearance ta act; hence the result of a mere accident may constitute a good cause of action. Grant v. Moseley, 29 Ala. 302. Accident is an event from an unknown cause, or an unusual and unexpected event from a known cause; a chance or casualty. A usual and expected event from omission of proper precautions is not accident, but it is negligence. Crutchfield v. Richmond, &c. E. R. Co., 70 N. C. 380. The law gives no redress for inevitable accidents, or for losses resulting from mutual negligence. But when the injury conies from the exclusive negligence of ope party, he cannot shield himself from liability by calling it an accident. Mc Grew V. Stone, 53 Pa. St. 436. To constitute wilful negligence, the act alleged to be wilful. Peoria Bridge Association V. Loomis, 20 111. 235. The word negligence ordinarily excludes design. Gove v. Farmers', &c. Ins. Co., 48 N. U. 41. Negligent escape. See Escape.