NEGLIGENCE, a ground of civil law liability, and in crim inal 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 of, the absence of due care, and actual damage caused directly by the absence of due 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 certifi cates, 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 negli gence; because he owed no duty to the mortgagee to be careful. When a duty to take care is established, the degree of care re quired 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." 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 in dependent contractor he is not liable. But in certain cases a stricter obligation is imposed on him by law. Thus, while the oc cupier of premises is under no duty whatsoever to trespassers, who must take the premises as they find them, and while he is under no duty to mere licensees other than the duty of seeing that there are no concealed dangers in the nature of traps, he is under a duty to invitees and to all persons entering as of right to see that the premises are in a reasonably safe condition so far as reasonable care and skill can make them so ; and from such duties 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 in dependent 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 care lessness of the servant of an independent contractor, so long as the carelessness is not casual or collateral to the servant's em ployment.
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 plain tiff'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 negli gence 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. But the case of the "Ber nina," decided in 1888, where a passenger and an engineer on board the "Bushire" were killed in a collision between the "Ber nina" 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 plain tiff was injured by his own carelessness.
The American law of negligence is founded on the English com mon law ; but the decisions in different States have occasionally contradicted English decisions, and also one another.
See T. G. Shearman and A. A. Redfield, The Law of Negligence (3rd ed., 1874) ; S. D. Thompson, Commentaries on Negligence (7 vols., Indianapolis, 1901-07) ; T. Beven, Negligence in Law (4th ed.,